[Federal Register Volume 85, Number 88 (Wednesday, May 6, 2020)]
[Proposed Rules]
[Pages 26907-26911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09373]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2020-0062; FRL-10008-86-Region 3]


Air Plan Approval; Maryland; 1997 8-Hour Ozone NAAQS Limited 
Maintenance Plan for the Kent and Queen Anne's Counties Area

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 the Maryland Department of 
the Environment's (MDE) plan for maintaining the 1997 8-hour ozone 
national ambient air quality standards (NAAQS) for the Kent and Queen 
Anne's Counties area. This action is being taken under the Clean Air 
Act (CAA).

DATES: Written comments must be received on or before June 5, 2020.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2020-0062 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

[[Page 26908]]

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: David Talley, 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-
2117. Mr. Talley can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: On December 18, 2019, MDE submitted a 
revision to the Maryland SIP to incorporate a plan for maintaining the 
1997 ozone NAAQS through January 1, 2028, in accordance with CAA 
section 175A. On March 12, 2020, MDE submitted a technical correction 
to their initial submittal, which included ``Appendix B--2014 Emissions 
Inventory Methodology Documentation.'' This appendix had been 
inadvertently omitted from the original submittal.

I. Background

    In 1979, under section 109 of the CAA, EPA established primary and 
secondary NAAQS for ozone at 0.12 parts per million (ppm), averaged 
over a 1-hour period. 44 FR 8202 (February 8, 1979). On July 18, 1997, 
EPA revised the primary and secondary NAAQS for ozone to set the 
acceptable level of ozone in the ambient air at 0.08 ppm, averaged over 
an 8-hour period. 62 FR 38856 (July 18, 1997).\1\ EPA set the 8-hour 
ozone NAAQS based on scientific evidence demonstrating that ozone 
causes adverse health effects at lower concentrations and over longer 
periods of time than was understood when the pre-existing 1-hour ozone 
NAAQS was set.
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    \1\ In March 2008, EPA completed another review of the primary 
and secondary ozone standards and tightened them further by lowering 
the level for both to 0.075 ppm. 73 FR 16436 (March 27, 2008). 
Additionally, in October 2015, EPA completed a review of the primary 
and secondary ozone standards and tightened them by lowering the 
level for both to 0.70 ppm. 80 FR 65292 (October 26, 2015).
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    Following promulgation of a new or revised NAAQS, EPA is required 
by the CAA to designate areas throughout the nation as attaining or not 
attaining the NAAQS. On April 30, 2004, EPA designated the Kent and 
Queen Anne's Counties area as nonattainment for the 1997 8-hr ozone 
NAAQS. 69 FR 23858.
    Once a nonattainment area has three years of complete, certified 
air quality data that has been determined to attain the NAAQS, and the 
area has met the other criteria outlined in CAA section 
107(d)(3)(E),\2\ the state can submit a request to EPA to redesignate 
the area to attainment. Areas that have been redesignated by EPA from 
nonattainment to attainment are referred to as ``maintenance areas.'' 
One of the criteria for redesignation is to have an approved 
maintenance plan under CAA section 175A. The maintenance plan must 
demonstrate that the area will continue to maintain the standard for 
the period extending 10 years after redesignation, and it must contain 
such additional measures as necessary to ensure maintenance as well 
contingency measures as necessary to assure that violations of the 
standard will be promptly corrected.
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    \2\ The requirements of CAA section 107(d)(3)(E) include 
attainment of the NAAQS, full approval under section 110(k) of the 
applicable SIP, determination that improvement in air quality is a 
result of permanent and enforceable reductions in emissions, 
demonstration that the state has met all applicable section 110 and 
part D requirements, and a fully approved maintenance plan under CAA 
section 175A.
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    On December 22, 2006 (effective January 22, 2007), EPA approved a 
redesignation request (and maintenance plan) from MDE for the Kent and 
Queen Anne's Counties area. 71 FR 76920. In accordance with section 
175A(b), at the end of the eighth year after the effective date of the 
redesignation, the state must also submit a second maintenance plan to 
ensure ongoing maintenance of the standard for an additional 10 years.
    EPA's final implementation rule for the 2008 ozone NAAQS revoked 
the 1997 ozone NAAQS and provided that one consequence of revocation 
was that areas that had been redesignated to attainment (i.e., 
maintenance areas) for the 1997 NAAQS no longer needed to submit second 
10-year maintenance plans under CAA section 175A(b).\3\ However, in 
South Coast Air Quality Management District v. EPA \4\ (South Coast 
II), the United States Court of Appeals for the District of Columbia 
(D.C. Circuit) vacated EPA's interpretation that, because of the 
revocation of the 1997 ozone standard, second maintenance plans were 
not required for ``orphan maintenance areas,'' (i.e., areas like Kent 
and Queen Anne's Counties) that had been redesignated to attainment for 
the 1997 NAAQS and were designated attainment for the 2008 ozone NAAQS. 
Thus, states with these ``orphan maintenance areas'' under the 1997 
ozone NAAQS must submit maintenance plans for the second maintenance 
period.
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    \3\ See 80 FR 12315 (March 6, 2015).
    \4\ 882 F.3d 1138 (D.C. Cir. 2018).
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    As previously discussed, CAA section 175A sets forth the criteria 
for adequate maintenance plans. In addition, EPA has published 
longstanding guidance that provides further insight on the content of 
an approvable maintenance plan, explaining that a maintenance plan 
should address five elements: (1) An attainment emissions inventory; 
(2) a maintenance demonstration; (3) a commitment for continued air 
quality monitoring; (4) a process for verification of continued 
attainment; and (5) a contingency plan.\5\ The 1992 Calcagni memo 
provides that states may generally demonstrate maintenance by either 
performing air quality modeling to show that the future mix of sources 
and emission rates will not cause a violation of the NAAQS or by 
showing that future emissions of a pollutant and its precursors will 
not exceed the level of emissions during a year when the area was 
attaining the NAAQS (i.e., attainment year inventory). See Calcagni 
Memo at p. 9. EPA further clarified in three subsequent guidance memos 
describing ``limited maintenance plans'' (LMPs) \6\ that the 
requirements of CAA section 175A could be met by demonstrating that the 
area's design value \7\ was well below the NAAQS and that the 
historical stability of the area's air quality levels showed that the 
area was unlikely to violate the NAAQS in the future. Specifically, EPA 
believes that if the most recent air quality design value for the area 
is at a level that is below 85% of the standard, or in this

[[Page 26909]]

case below 0.071 ppm, then EPA considers the state to have met the 
section 175A requirement for a demonstration that the area will 
maintain the NAAQS for the requisite period. Accordingly, on December 
18, 2019, MDE submitted an LMP for the Kent and Queen Anne's Counties 
area, demonstrating that the area will maintain the 1997 ozone NAAQS 
through January 1, 2028, i.e., through the entire 20-year maintenance 
period.
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    \5\ ``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992 (Calcagni Memo).
    \6\ See ``Limited Maintenance Plan Option for Nonclassifiable 
Ozone Nonattainment Areas'' from Sally L. Shaver, Office of Air 
Quality Planning and Standards (OAQPS), dated November 16, 1994; 
``Limited Maintenance Plan Option for Nonclassifiable CO 
Nonattainment Areas'' from Joseph Paisie, OAQPS, dated October 6, 
1995; and ``Limited Maintenance Plan Option for Moderate 
PM10 Nonattainment Areas'' from Lydia Wegman, OAQPS, 
dated August 9, 2001.
    \7\ The ozone design value for a monitoring site is the 3-year 
average of the annual fourth-highest daily maximum 8-hour average 
ozone concentrations. The design value for an ozone nonattainment 
area is the highest design value of any monitoring site in the area.
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II. Summary of SIP Revision and EPA Analysis

    MDE's December 18, 2019 SIP submittal outlines a plan for continued 
maintenance of the 1997 ozone NAAQS which addresses the criteria set 
forth in the Calcagni Memo as follows.

A. Attainment Emissions Inventory

    A state should develop a comprehensive and accurate inventory of 
actual emissions for an attainment year which identifies the level of 
emissions in the area which is sufficient to maintain the NAAQS. The 
inventory should be developed consistent with EPA's most recent 
guidance. For ozone, the inventory should be based on typical summer 
day's emissions of oxides of nitrogen (NOX) and volatile 
organic compounds (VOC), the precursors to ozone formation.
    Table 1 presents a summary of the 2014 inventories submitted in the 
maintenance plan.

                             Table 1--2014 Typical Summer Day VOC and NOX Emissions
                                                  [tons/day] 8
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                     Area                                Source category                VOC             NOX
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Kent County...................................  Nonroad.........................            2.49            1.23
                                                Onroad..........................            0.42            0.96
                                                Point Source....................            0.04            0.23
                                                Area Source.....................            0.82            0.05
Queen Anne's County...........................  Nonroad.........................            2.63            1.60
                                                Onroad..........................            1.10            3.69
                                                Point Source....................            0.03            0.05
                                                Area Source.....................            1.97            0.09
                                                                                 -------------------------------
    Total.....................................  ................................            9.50            7.90
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    The 2014 emissions inventory was prepared by MDE and uploaded into 
EPA's Emissions Inventory System (EIS) for inclusion in EPA's National 
Emission Inventory (NEI). The inventory addresses four anthropogenic 
emission source categories: Stationary (point) sources, stationary 
nonpoint (area) sources, nonroad mobile, and on-road mobile sources. 
Point sources are stationary sources that have the potential to emit 
(pte) more than 100 tons per year (tpy) of VOC, or more than 50 tpy of 
NOX, and which are required to obtain an operating permit. 
Data are collected for each source at a facility and reported to MDE. 
Stationary area sources have relatively low emissions individually, but 
due to the large number of sources, cumulative emissions could be 
significant. Examples include fuel combustion for household heating. 
Emissions are estimated by using emission factors and known variables 
such as population, or number of households. On-road mobile emissions 
are modelled by MDE using EPA's Motor Vehicle Emission Simulator 
(MOVES). MDE generates nonroad mobile source emissions data through the 
use of EPA's NONROAD2014a model, except for marine air and rail 
emissions which are estimated at the county level based on emission 
factors and activity levels. EPA reviewed the supporting documentation 
submitted by MDE \9\ and proposes to conclude that the plan's inventory 
is acceptable for the purposes of a subsequent maintenance plan under 
CAA section 175A(b).
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    \8\ Data in Table 1 have been rounded. See Table 4.1-1 of MDE's 
December 18, 2019 submittal for precise data.
    \9\ See Appendix B of MDE's March 12, 2020 technical correction.
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B. Maintenance Demonstration

    In order to attain the 1997 ozone NAAQS, the three-year average of 
the fourth-highest daily average ozone concentrations (design value, 
DV) at each monitor within an area must not exceed 0.08 ppm. Based on 
the rounding convention described in 40 CFR part 50, appendix I, the 
standard is attained if the DV is 0.084 ppm or below. CAA section 175A 
requires a demonstration that the area will continue to maintain the 
NAAQS throughout the duration of the requisite maintenance period. 
Consistent with the prior guidance documents discussed previously in 
this document, EPA believes that if the most recent DV for the area is 
well below the NAAQS (e.g., below 85%, or in this case below 0.071 
ppm), the section 175A demonstration requirement has been met, provided 
that Prevention of Significant Deterioration requirements, any control 
measures already in the SIP, and any Federal measures remain in place 
through the end of the second 10-year maintenance period (absent a 
showing consistent with section 110(l) that such measures are not 
necessary to assure maintenance). Table 2 shows that the last two DVs 
for the Kent and Queen Anne's County area continue to be below 85% of 
the 1997 ozone NAAQS.\10\
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    \10\ The 2016-2018 DV was published by EPA after the date of 
MDE's submittal. See https://www.epa.gov/sites/production/files/2019-07/ozone_designvalues_20162018_final_06_28_19.xlsx.

                      Table 2--Recent Air Quality Values for Kent and Queen Anne's Counties
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                                        Design value                    Design value
           Designated area                  years        AQS site ID        (DV)             DV <0.071 ppm?
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Kent and Queen Anne's Counties.......       2015-2017     24-029-0002           0.070  Yes.
                                            2016-2018     24-029-0002           0.069  Yes.
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    Additionally, states can support the demonstration of continued 
maintenance by showing stable or improving air quality trends. Several 
kinds of analyses can be performed by states wishing to make such a 
showing. One approach is to take the most recent DV for the area and 
add the biggest increase that has been observed over the past several 
years. A sum that is still below the NAAQS would be considered a good 
indication of continued attainment.\11\ Going back to the 2004-2006 DV 
years, the largest increase in DV was 0.008 ppm and occurred between 
the 2009-2011 (0.074 ppm) and the 2010-2012 (0.082 ppm) DV years.\12\ 
Adding 0.008 ppm to the most recent DV of 0.069 ppm results in a sum 
that is still below the NAAQS (0.077 ppm). Therefore, EPA believes MDE 
has satisfactorily demonstrated that future violations of the NAAQS in 
this area are unlikely.
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    \11\ See https://www.epa.gov/sites/production/files/2018-11/documents/ozone_1997_naaqs_lmp_resource_document_nov_20_2018.pdf at 
pgs. 6-7.
    \12\ See Tables 3.1-1 and 3.2-2 of MDE's December 18, 2019 
submittal found at https://www.regulations.gov, Docket ID No. EPA-
R03-OAR-2020-0062.
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C. Continued Air Quality Monitoring and Verification of Continued 
Attainment

    Once an area has been redesignated to attainment, the State remains 
obligated to maintain an air quality network in accordance with 40 CFR 
part 58, in order to verify the area's attainment status. MDE monitors 
ambient ozone concentrations at the Millington, MD site (Air Quality 
System (AQS)) Site ID 24-029-0002). In the December 18, 2019 submittal, 
Maryland committed to maintaining an appropriate air quality monitoring 
network, in accordance with part 58. MDE committed to track and analyze 
any exceedances of the NAAQS during the maintenance period.

D. Contingency Plan

    CAA section 175A requires that each maintenance plan include 
provisions which require the state to maintain all control measures 
which were in place in the SIP prior to redesignation. Additionally, 
each maintenance plan must contain contingency measures sufficient to 
assure that the state will promptly correct violations of the NAAQS 
after the area is redesignated as an attainment area.
    MDE's December 18, 2019 submittal outlines its foundation control 
program, which is intended to prevent violations of the NAAQS. MDE 
committed to continued implementation of the SIP measures for the 
control of NOX and VOC which were in place prior to 
redesignation. These include the Tier 3 Vehicle Emissions and Control 
Program, Vehicle Inspection and Maintenance Programs, and standards for 
various nonroad engines.\13\
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    \13\ See MDE's December 18, 2019 submittal at pgs. 10-12.
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    MDE's December 18, 2019 submittal also included a contingency plan, 
to be implemented in the event of NAAQS violations in the future. MDE 
listed two specific regulatory measures which will be evaluated and 
implemented through the promulgation of a rule in the event that the 
contingency plan is triggered. First, MDE will consider accelerating 
compliance with Code of Maryland Regulations (COMAR) section 
26.11.13.07 (Control of VOC Emissions from Portable Fuel Containers) by 
creating a voluntary portable fuel container exchange program affecting 
residences and businesses. Second, MDE will consider lowering the 
applicability threshold for industrial, commercial, and institutional 
(ICI) boiler standards under COMAR 26.11.09.08, potentially impacting 
the sources listed in Table 3.

 Table 3--Sources Potentially Impacted by Lower Applicability Thresholds
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          Queen Anne's County                      Kent County
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Chesapeake College.....................  Washington College.
Kent Narrows Waste Water Treatment       Kent and Queen Anne's Hospital.
 Plant.
Queen Anne's County Emergency Center...  Wenger's Feed Mill.
Chesapeake Bay Bridge Maintenance and    Kent County Public Works and
 Administration Facility.                 Roads Building.
Centerville Town Hall and Sheriff's      Monsanto-Asgrow Seeds.
 Department.
Queenstown Town Offices and Courthouse.  Maryland SHA District 2 Office.
County Health Department...............  Maryland State Police.
County Board of Education..............  National Guard Armory.
County Courthouse......................  County Courthouse.
County Department of Public Works......  Chestertown Filtration Plant.
Maryland SHA Garage....................  County Schools.
Maryland State Police..................
National Guard Armory..................
County Schools.........................
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    MDE's contingency plan also includes the possibility of 
implementing other measures as necessary in order to return the area to 
attainment.
    After the fourth ozone season exceedance of the 1997 NAAQS (0.08 
ppm) at the Millington monitoring station, MDE will immediately 
recalculate the DV for that monitor. If the recalculated DV exceeds the 
NAAQS, the contingency plan will be ``triggered,'' based on the 
following schedule: (1) Within two weeks of the trigger, MDE will 
notify Kent and Queen Anne's Counties and other stakeholders and 
schedule a meeting concerning the selection and implementation of 
contingency measures; (2) Within six weeks of the trigger, the meeting 
will be convened; (3) Within twelve weeks of the trigger, a public 
meeting will be held on the proposed contingency measures; (4) Within 
eighteen weeks of the trigger, all stakeholders will convene to 
consider public comments and finalize a list of planned contingency 
measures; (5) After the list of contingency measures is finalized, it 
will take approximately twelve months to complete any required 
rulemaking processes; (6) Within twenty four months of the trigger, 
agreed upon contingency measure will be implemented in the impacted 
counties.

E. Transportation Conformity

    Transportation conformity is required by section 176(c) of the CAA. 
Conformity to a SIP means that transportation activities will not 
produce new air quality violations, worsen existing violations, or 
delay

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timely attainment of the NAAQS (CAA 176(c)(1)(B)). EPA's conformity 
rule at 40 CFR part 93 requires that transportation plans, programs and 
projects conform to SIPs and establish the criteria and procedures for 
determining whether or not they conform. The conformity rule generally 
requires a demonstration that emissions from the Regional 
Transportation Plan (RTP) and the Transportation Improvement Program 
(TIP) are consistent with the motor vehicle emissions budget (MVEB) 
contained in the control strategy SIP revision or maintenance plan (40 
CFR 93.101, 93.118, and 93.124). A MVEB is defined as ``that portion of 
the total allowable emissions defined in the submitted or approved 
control strategy implementation plan revision or maintenance plan for a 
certain date for the purpose of meeting reasonable further progress 
milestones or demonstrating attainment or maintenance of the NAAQS, for 
any criteria pollutant or its precursors, allocated to highway and 
transit vehicle use and emissions (40 CFR 93.101).''
    Under the conformity rule, LMP areas may demonstrate conformity 
without a regional emission analysis (40 CFR 93.109(e)). However, 
because LMP areas are still maintenance areas, certain aspects of 
transportation conformity determinations still will be required for 
transportation plans, programs and projects. Specifically, for such 
determinations, RTPs, TIPs and transportation projects still will have 
to demonstrate that they are fiscally constrained (40 CFR 93.108), meet 
the criteria for consultation (40 CFR 93.105 and 40 CFR 93.112) and 
transportation control measure implementation in the conformity rule 
provisions (40 CFR 93.113). Additionally, conformity determinations for 
RTPs and TIPs must be determined no less frequently than every four 
years, and conformity of transportation plan and TIP amendments and 
transportation projects is demonstrated in accordance with the timing 
requirements specified in 40 CFR 93.104. In addition, for projects to 
be approved, they must come from a currently conforming RTP and TIP (40 
CFR 93.114 and 93.115).

III. Proposed Action

    EPA's review of MDE's December 18, 2019 submittal and March 12, 
2020 technical correction indicates they meet CAA section 175A and all 
applicable CAA requirements. EPA is proposing to approve the LMP for 
Kent and Queen Anne's Counties as a revision to the Maryland SIP. EPA 
is soliciting public comments on the issues discussed in this document. 
These comments will be considered before taking final action.

IV. 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 (Public Law 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, pertaining Maryland's limited 
maintenance plan for Kent and Queen Anne's Counties, 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, Volatile organic compounds.

    Dated: April 27, 2020.
Cosmo Servidio,
Regional Administrator, Region III.
[FR Doc. 2020-09373 Filed 5-5-20; 8:45 am]
 BILLING CODE 6560-50-P