[Federal Register Volume 85, Number 78 (Wednesday, April 22, 2020)]
[Proposed Rules]
[Pages 22381-22384]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08240]
[[Page 22381]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2018-0042; FRL-10007-90-Region 3]
Air Plan Disapproval; Maryland; Interstate Transport Requirements
for the 2010 1-Hour Sulfur Dioxide National Ambient Air Quality
Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
disapprove part of a Maryland state implementation plan (SIP)
submission as inadequate to meet certain Clean Air Act (CAA) interstate
transport requirements for the 2010 primary sulfur dioxide National
Ambient Air Quality Standard (SO2 NAAQS). Specifically, EPA
proposes to find that the Maryland SIP submission does not contain
adequate provisions prohibiting emissions from Maryland sources which
will contribute significantly to nonattainment or interfere with
maintenance of the 2010 SO2 NAAQS in any other state.
DATES: Written comments must be received on or before May 22, 2020.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2018-0042 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://www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Megan Goold, Planning & Implementation
Branch (3AD30), Air & Radiation Division, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
The telephone number is (215) 814-2027. Ms. Goold can also be reached
via electronic mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On June 22, 2010 (75 FR 35520), EPA promulgated a revised primary
NAAQS for SO2 at a level of 75 parts per billion (ppb),
based on a 3-year average of the annual 99th percentile of 1-hour daily
maximum concentrations. Pursuant to section 110(a)(1), states must
submit ``within 3 years (or such shorter period as the Administrator
may prescribe) after the promulgation of a national primary ambient air
quality standard (or any revision thereof),'' a plan that provides for
the ``implementation, maintenance, and enforcement'' of such NAAQS.
This SIP submission is generally referred to as an ``infrastructure
SIP.'' The statute directly imposes on states the duty to make these
SIP submissions, and the requirement to make the submissions is not
conditioned upon EPA's taking any action other than promulgating a new
or revised NAAQS. Section 110(a)(2) includes a list of specific
elements that ``[e]ach such plan'' submission must address to meet the
infrastructure requirements. Among the section 110(a)(2) requirements
are the requirements under section 110(a)(2)(D)(i)(I) for states to
include adequate provisions in their SIPs that prohibit emissions
within the state which will contribute significantly to nonattainment
in, or interfere with maintenance by, any other state with respect to a
NAAQS. This infrastructure element related to interstate transport of
SO2 is the subject of this proposed rulemaking action.
II. Relevant Factors To Evaluate 2010 SO2 Interstate
Transport SIPs
Although SO2 is emitted from a similar universe of point
and nonpoint sources, interstate transport of SO2 is unlike
the transport of fine particulate matter (PM2.5) or ozone,
in that SO2 is not a regional pollutant and does not
commonly contribute to widespread nonattainment over a large (and often
multi-state) area. The transport of SO2 is more analogous to
the transport of lead (Pb) because its physical properties result in
localized pollutant impacts very near the emissions source. However,
ambient concentrations of SO2 do not decrease as quickly
with distance from the source as Pb because of the physical properties
and typical release heights of SO2. Emissions of
SO2 travel farther and have wider ranging impacts than
emissions of Pb but do not travel far enough to be treated in a manner
similar to ozone or PM2.5. The approaches that the EPA has
adopted for ozone or PM2.5 transport are too regionally
focused and the approach for Pb transport is too tightly circumscribed
to the source to serve as a model for SO2 transport.
SO2 transport is therefore a unique case and requires a
different approach.
In this proposed rulemaking, as in prior SO2 transport
analyses, EPA focuses on a 50 kilometer-wide zone around large
stationary sources of SO2 because the physical properties of
SO2 result in relatively localized pollutant impacts near an
emissions source that diminish with distance. Given the physical
properties of SO2, EPA selected the ``urban scale''--a
spatial scale with dimensions from 4 to 50 kilometers (km) from point
sources--given the usefulness of that range in assessing trends in both
area-wide air quality and the effectiveness of large-scale pollution
control strategies at such point sources.\1\ As such, EPA utilized an
assessment up to 50 km from point sources in order to assess trends in
area-wide air quality that might impact downwind states.
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\1\ For the definition of spatial scales for SO2, see
40 CFR part 58, appendix D, section 4.4 (``Sulfur Dioxide
(SO2) Design Criteria''). For further discussion on how
EPA is applying these definitions with respect to interstate
transport of SO2, see EPA's proposal on Connecticut's
SO2 transport SIP. 82 FR 21351, 21352, 21354 (May 8,
2017).
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III. Summary of State SIP Revision
On August 17, 2016, Maryland, through the Maryland Department of
the Environment (MDE), submitted a SIP revision, consistent with EPA
guidance, to satisfy most of the infrastructure requirements of CAA
section 110(a)(2) for the 2010 SO2 NAAQS.\2\
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\2\ Consistent with ``Guidance on Infrastructure SIP Elements
under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' Memorandum
from Stephen D. Page, September 13, 2013. The Maryland SIP
submission addressed all of the infrastructure requirements of
section 110(a)(2) except for requirements concerning nonattainment
new source review permit programs under 110(a)(2)(C) and the
nonattainment planning requirements under part D, title I of the CAA
found at 110(a)(2)(I). These elements are not subject to the same
three-year deadline for adoption as the other 110(a)(2)
requirements.
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On May 8, 2019 (84 FR 20070), EPA proposed approval of Maryland's
infrastructure SIP submittal for the 2010
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1-hour SO2 NAAQS for all of the submitted applicable
elements of section 110(a)(2) with the exception of 110(a)(2)(D)(i)(I),
which are the interstate transport elements. In that action, EPA stated
that it would act on the interstate transport elements in a future
action. This proposed rulemaking action addresses those interstate
transport elements.
In Maryland's August 17, 2016 SIP submittal, MDE discusses various
State and Federal measures which it asserts prohibit Maryland sources
from emitting SO2 at levels which would contribute
significantly to nonattainment or interfere with maintenance of the
SO2 NAAQS in another state, including: (1) The Healthy Air
Act (HAA), which was enacted in 2006, as well as its implementing
regulations at Code of Maryland Regulations (COMAR) 26.11.27 (adopted
into the SIP in 2017 (73 FR 51599)), which require reductions in total
emissions of SO2 from electric generating units (EGUs); (2)
a July 11, 2013 consent decree between Holcim, Incorporated and the
U.S. government which requires Holcim to replace units at its
Hagerstown, Maryland facility and install controls with significant
SO2 reductions; and (3) the State's Regional Haze SIP,
approved by EPA on July 6, 2012 (77 FR 39938), which reduces
SO2 from Maryland sources subject to Best Available Retrofit
Technology (BART) requirements.
Maryland also considered four existing SO2 nonattainment
areas in Pennsylvania, West Virginia, and Ohio, as well as one area in
Ohio that was not yet characterized at the time of Maryland's August
17, 2016 submittal but that Maryland considered a potential
nonattainment area. Maryland determined that the distance from Maryland
state borders to the existing nonattainment areas or to the potential
nonattainment area was beyond the range of concern for transported
SO2 emissions.\3\ Likewise, Maryland considered a potential
nonattainment area in the State that had not yet been characterized and
determined that the distance (39 miles or approximately 63 km) from the
large SO2 sources in that uncharacterized area to a
neighboring state was also beyond the range of concern for
SO2 transport.
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\3\ The distance from Maryland's nearest border to the Allegheny
County, Pennsylvania SO2 nonattainment area is 49 miles
(approximately 79 km), to the Indiana, Pennsylvania SO2
nonattainment area is 59 miles (approximately 95 km), to the
Marshall, West Virginia SO2 nonattainment area is 69
miles (approximately 111 km) and to the Weirton-Steubenville, Ohio-
West Virginia SO2 nonattainment area is 78 miles
(approximately 126 km). The distance from Maryland's state border to
Ohio's potential nonattainment area is 142 miles (approximately 229
km).
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IV. EPA's Analysis of Maryland's Submittal
The EPA generally agrees that the Federally enforceable measures
described in Maryland's August 17, 2016 SIP submittal have contributed
to reductions of SO2 emissions at specific sources
throughout the State. However, the submittal does not address
SO2 emissions from the Luke Paper Mill (Luke) that current
ambient monitoring data demonstrate as contributing significantly to
nonattainment of the 2010 SO2 NAAQS in West Virginia.
On August 21, 2015 (80 FR 51052), EPA promulgated air quality
characterization requirements for the 2010 1-hour SO2 NAAQS
in the Data Requirements Rule (DRR). The DRR requires state and local
air agencies to characterize air quality, through air dispersion
modeling or monitoring, in areas associated with sources that emitted
2,000 tons per year (tpy) or more of SO2, or that have
otherwise been listed under the DRR by EPA or state air agencies. EPA
expected that the information generated by implementation of the DRR
would help inform designations for the 2010 1-hour SO2
NAAQS, including designations of the remaining undesignated areas that
must be completed by December 31, 2020 (``round 4''), as well as for
other CAA programs. New source-oriented monitors were required to be
operational by January 1, 2017.
Luke, in Allegany County, Maryland, is a source of SO2
emissions located on the West Virginia state border. Luke emitted
greater than 2,000 tons of SO2 in 2014 and was therefore
required to be characterized pursuant to the DRR. Maryland elected to
install new source-oriented monitors to capture the maximum impacts
from Luke.\4\ Two monitors were installed in Allegany County, Maryland,
and one monitor was installed in Mineral County, West Virginia. These
three monitors were installed in accordance with EPA's Source-Oriented
Monitoring Technical Assistance Document \5\ as described in Maryland's
Annual Monitoring Network Plan (AMNP) for Calendar Year 2017 and the
accompanying Addendum, which were both approved by EPA on November 10,
2016.\6\
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\4\ Maryland's 2016 Annual Monitoring Network Plan details the
modeling used to site the three new monitors around the Luke Paper
facility. Through that plan, EPA approved the new monitor locations.
\5\ See EPA's SO2 NAAQS Designations Source-Oriented
Monitoring Technical Assistance Document (TAD), February 2016, at
https://www3.epa.gov/airquality/so2implementation/SO2MonitoringTAD.pdf.
\6\ As required by 40 CFR 58.10, Maryland submits an AMNP
annually to EPA that details any modifications to the monitoring
network. The AMNPs for calendar years 2017-2019 are provided in the
docket for this rulemaking. EPA's approval of each AMNP is included
in the subsequent year's AMNP in the docket.
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The three source-oriented monitors around the Luke facility began
operating after this SIP was submitted in 2016. The two Maryland
monitors began operating on January 11, 2017 and the West Virginia
monitor began operating on February 24, 2017.
Table 1 shows the certified 99th percentile of daily maximum 1-hour
concentrations at the three new monitors for 2017 and 2018, as well as
the preliminary 99th percentile concentration for 2019.\7\ The 2019
data is preliminary because it has not yet been quality assured and
certified. Maryland is required to certify the 2019 data for all three
monitors by May 1, 2020.
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\7\ To certify monitoring data, state or local air agencies
upload their data to the EPA Air Quality System (AQS) for the year,
review their data, correct it as needed, and ``certify'' their data
in the system.
\8\ Data source: EPA AQS, https://www.epa.gov/aqs.
Table 1--Monitored SO2 Concentrations, in ppb, Around Luke \8\
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Preliminary
2017 99th 2018 99th Preliminary 2017-19
County, state Monitor ID percentile percentile 2019 99th average
percentile (design value)
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Mineral, WV..................... 54-057-8883 186.8 203.3 134.9 175
Allegany, MD.................... 24-001-8881 88.8 105.7 71.7 89
Allegany, MD.................... 24-001-8882 152.3 172.5 144 156
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A monitoring site in an area is determined to be meeting the 2010
primary 1-hour SO2 NAAQS when the 99th percentile of the
daily maximum 1-hour average concentrations, averaged over three years,
does not exceed 75 ppb (40 CFR 50.17(b)). Two years of certified data
shows the 2017 and 2018 99th percentile concentrations at the Mineral
County, West Virginia monitor as 186.8 ppb and 203.3 ppb, respectively.
The preliminary 2019 99th percentile 1-hour maximum concentration and
the projected design value using the preliminary 2019 99th percentile
1-hour maximum concentration are also shown in the table. The
preliminary 2017-2019 design value at the Mineral County, West Virginia
monitor is 175 ppb, using certified 2017-2018 data and preliminary 2019
data. This monitor would not show levels meeting the standard
regardless of the certified 99th percentile value for 2019 because even
if the 99th percentile value for 2019 was zero, the 3-year design value
would still violate the NAAQS ((186.8 ppb + 203.3 ppb + 0 ppb)/3 =
130.03 ppb). This means it is mathematically impossible for this
monitor to show attainment with the 2010 SO2 NAAQS.
Luke is the only source \9\ that emits greater than 100 tpy of
SO2 in the area near the Mineral County, West Virginia
monitor.\10\ Based on the information contained in this notice, EPA
proposes to conclude that Luke is impacting a violation of the NAAQS in
the neighboring state of West Virginia. Therefore, EPA proposes that
Luke significantly contributes to projected nonattainment in West
Virginia. EPA is aware that Luke has ceased operations as of June 2019,
however, as of the date of this action, Luke has not surrendered its
permit(s) and there are no Federally enforceable measures in Maryland's
SIP to prevent Luke from restarting operations and emitting
SO2 at levels that contribute significantly to nonattainment
or interfere with the maintenance of the 2010 SO2 NAAQS in
West Virginia.
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\9\ While there are other SO2 emissions sources near
the primary Luke facility and its associated source-oriented
monitors, these smaller sources are either also owned by Luke, have
low SO2 emissions compared to the primary Luke facility,
or are located a far enough distance away that they are likely not
significant contributors to the violating monitors given the nature
of SO2 dispersion described in section II.
\10\ There is a SO2 source about 35 km away in
neighboring Grant County, West Virginia, that was required to be
characterized pursuant the DRR. In Round 3 of SO2
designations, EPA designated the area around Dominion Resources, Mt.
Storm Power Station as Attainment/Unclassifiable based on modeling
performed by the State of West Virginia. This modeling projected the
peak impacts from the Mt. Storm plant to be south of the facility,
away from the area around the Luke facility. See ``Technical Support
Document: Chapter 43 Intended Round 3 Area Designations for the 2010
1-Hour SO2 Primary National Ambient Air Quality Standard
for West Virginia'' at https://www.epa.gov/sites/production/files/2017-08/documents/43_wv_so2_rd3-final.pdf. See also ``Technical
Support Document: Chapter 43 Final Round 3 Area Designations for the
2010 1-Hour SO2 Primary National Ambient Air Quality
Standard for West Virginia'' at https://www.epa.gov/sites/production/files/2017-12/documents/43-wv-so2-rd3-final.pdf.
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V. Proposed Action
EPA is proposing to determine that the portion of the August 17,
2016 Maryland SO2 infrastructure SIP submittal addressing
CAA section 110(a)(2)(D)(i)(I) (the interstate transport of pollution)
is not approvable because it does not include measures addressing the
SO2 emissions from the Luke Paper Mill in Maryland that,
based on the available information described herein, EPA believes will
contribute significantly to the projected nonattainment in West
Virginia or will interfere with maintenance of the 2010 SO2
NAAQS.
VI. Statutory and Executive Order Reviews
Executive Orders 12866 and 13563: Regulatory Planning and Review
Under Executive Orders 12866 (58 FR 51735, October 4, 1993) and
13563 (76 FR 3821, January 21, 2011), this action is not a
``significant regulatory action'' and, therefore, is not subject to
review by the Office of Management and Budget.
Executive Order 13771: Reducing Regulations and Controlling Regulatory
Costs
This action is not an Executive Order 13771 regulatory action
because this action is not significant under Executive Order 12866.
Paperwork Reduction Act
This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
Regulatory Flexibility Act
This action merely proposes to disapprove state requirements as not
meeting Federal requirements and imposes no additional requirements
beyond those imposed by state law. Accordingly, the Administrator
certifies that this rule will not have a significant economic impact on
a substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.).
Unfunded Mandates Reform Act
Because this rule proposes to disapprove pre-existing requirements
under state law and does not impose any additional enforceable duty
beyond that required by state law, it 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).
Executive Order 13132: Federalism
This action also does not have Federalism implications because it
does not have substantial direct effects on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132 (64 FR 43255, August
10, 1999). This action merely proposes to disapprove a state
requirement and does not alter the relationship or the distribution of
power and responsibilities established in the CAA.
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 13045: Protection of Children From Environmental Health
and Safety Risks
This rule also is not subject to Executive Order 13045 ``Protection
of Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it proposes to disapprove a state rule.
Executive Order 13211: Actions That Significantly Affect Energy Supply,
Distribution, or Use
Because it is not a ``significant regulatory action'' under
Executive Order 12866 or a ``significant energy action,'' this action
is also not subject to Executive Order 13211. (66 FR 28355, May 22,
2001).
National Technology Transfer Advancement Act
In reviewing state submissions, EPA's role is to approve state
choices, provided that they meet the criteria of
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the CAA. In this context, in the absence of a prior existing
requirement for the state to use voluntary consensus standards (VCS),
EPA has no authority to disapprove a state submission for failure to
use VCS. It would thus be inconsistent with applicable law for EPA,
when it reviews a state submission, to use VCS in place of a state
submission that otherwise satisfies the provisions of the CAA. Thus,
the requirements of section 12(d) of the National Technology Transfer
and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
Executive Order 12898: Federal Actions To Address Environmental Justice
in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this action. In reviewing SIP submissions, EPA's role is to
approve or disapprove state choices, based on the criteria of the CAA.
Accordingly, this action merely disapproves certain state requirements
for inclusion into the SIP under section 110 of the CAA and will not
in-and-of itself create any new requirements. Accordingly, it 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Sulfur oxides.
Dated: April 13, 2020.
Cosmo Servidio,
Regional Administrator, Region III.
[FR Doc. 2020-08240 Filed 4-21-20; 8:45 am]
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