[Federal Register Volume 87, Number 112 (Friday, June 10, 2022)]
[Rules and Regulations]
[Pages 35421-35423]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12255]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2021-0662; FRL-9465-02-R3]


Air Plan Approval; Maryland; Nonattainment New Source Review 
Requirements for 2015 8-Hour Ozone National Ambient Air Quality 
Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a state 
implementation plan (SIP) revision submitted by the State of Maryland. 
The revision certifies that Maryland's existing nonattainment new 
source review (NNSR) program, covering the Baltimore nonattainment 
area, the Philadelphia-Wilmington-Atlantic City nonattainment area, and 
the Washington, DC nonattainment area for the 2015 8-hour ozone 
national ambient air quality standards (NAAQS), is at least as 
stringent as applicable Federal requirements. EPA is approving these 
revisions to the Maryland SIP in accordance with the requirements of 
the Clean Air Act (CAA).

DATES: This final rule is effective on July 11, 2022.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2021-0662. All documents in the docket are listed on 
the https://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 
https://www.regulations.gov, or please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Yongtian He, Permits Branch (3AD10), 
Air & Radiation Division, U.S. Environmental Protection Agency, Region 
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. The telephone 
number is (215) 814-2339. Mr. He can also be reached via electronic 
mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On March 7, 2022 (87 FR 12631), EPA published a notice of proposed 
rulemaking (NPRM) for the State of Maryland. In the NPRM, EPA proposed 
approval of Maryland's SIP revision addressing the NNSR requirements 
for the 2015 8-hour ozone NAAQS for the Baltimore, MD, Philadelphia-
Wilmington-Atlantic City, PA-NJ-MD-DE, and Washington, DC-MD-VA 
nonattainment areas. The formal SIP revision (#20-05) was submitted by 
Maryland on June 3, 2020.
    In the SIP revision, MDE is certifying that its existing NNSR 
program, covering the Baltimore nonattainment area (which includes Anne 
Arundel, Baltimore, Carroll, Harford, and Howard Counties and the city 
of Baltimore), the Maryland portion of Philadelphia-Wilmington-Atlantic 
City nonattainment area (which includes Cecil County in Maryland), and 
the Maryland portion of the Washington, DC nonattainment area (which 
includes Calvert, Charles, Frederick, Montgomery, and Prince Georges 
Counties in Maryland) for the 2015 8-hour ozone NAAQS, is at least as 
stringent as the requirements at 40 CFR 51.165 for ozone and its 
precursors.
    On October 1, 2015 (effective December 28, 2015), EPA promulgated a 
revised 8-hour ozone NAAQS of 0.070 parts per million (ppm). See 80 FR 
65292 (October 26, 2015). Upon promulgation of a new or revised NAAQS, 
the CAA requires EPA to designate as nonattainment any area that is 
violating the NAAQS based on the three most recent years of ambient air 
quality data at the conclusion of the designation process. The 
Baltimore nonattainment area, the Philadelphia-Wilmington-Atlantic City 
nonattainment area, and the Washington, DC-MD-VA area were classified 
as marginal nonattainment for the 2015 8-hour ozone NAAQS on June 4, 
2018 (effective August 3, 2018) using 2014-2016 ambient air quality 
data. See 83 FR 25776 (June 4, 2018).
    On December 6, 2018, EPA issued the final SIP Requirements Rule, 
which establishes the requirements that state, tribal, and local air 
quality management agencies must meet as they develop implementation 
plans for areas where air quality exceeds the 2015 8-hour ozone NAAQS. 
Areas that were designated as marginal ozone nonattainment areas are 
required to attain the 2015 8-hour ozone NAAQS no later than August 3, 
2021. See 83 FR 10376 (March 9, 2018) and 83 FR 62998 (December 6, 
2018). On April 13, 2022, EPA proposed to determine that the

[[Page 35422]]

Baltimore and Philadelphia nonattainment areas had not timely attained 
the 2015 ozone NAAQS. See 87 FR 21842. EPA has not yet taken final 
action on that proposal.

II. Summary of SIP Revision and EPA Analysis

    This rule is specific to Maryland's NNSR requirements for the 
Baltimore nonattainment area, the Philadelphia-Wilmington-Atlantic City 
nonattainment area, and the Washington, DC-MD-VA nonattainment area. 
NNSR is a preconstruction review permit program that applies to new 
major stationary sources or major modifications at existing sources 
located in a nonattainment area. The specific NNSR requirements for the 
ozone NAAQS are located in 40 CFR 51.160 through 51.165. The SIP 
Requirements Rule explained that, for each nonattainment area, a NNSR 
plan or plan revision was due no later than 36 months after the 
effective date of area designations for the 2015 8-hour ozone standard 
(i.e., August 3, 2021).
    The minimum SIP requirements for NNSR permitting programs for the 
2015 8-hour ozone NAAQS are set forth in 40 CFR 51.165. See 40 CFR 
51.1114. For the 2015 8-hour ozone NAAQS, the SIP for each ozone 
nonattainment area designated nonattainment for the 2008 8-hour ozone 
NAAQS and designated nonattainment for the 1997 ozone NAAQS must also 
contain NNSR provisions that include the anti-backsliding requirements 
at 40 CFR 51.1105. See 40 CFR 51.165(a)(12).
    Maryland's longstanding SIP approved NNSR program, established in 
Code of Maryland Regulations (COMAR) Air Quality Rule COMAR 26.11.17--
Nonattainment Provisions for Major New Sources and Major Modifications, 
applies to the construction and modification of major stationary 
sources in nonattainment areas. COMAR 26.11.17 currently includes 
provisions allowing ozone interprecursor trading. On January 31, 2020, 
MDE submitted a SIP revision (#20-02) to incorporate the interprecursor 
trading provisions of COMAR 26.11.17 into the Maryland SIP. On October 
27, 2020, EPA published a notice of proposed rulemaking (NPRM) in which 
EPA proposed to approve Maryland SIP revision #20-02). See 85 FR 68029 
(October 27, 2020). MDE's SIP Revision #20-05 submission to EPA 
referenced those interprecursor trading provisions of COMAR 26.11.17 in 
its certification that Maryland's NNSR program was consistent with 
Federal requirements. Subsequently, on January 29, 2021, the United 
States Court of Appeals for the D.C. Circuit concluded that ozone 
interprecursor trading is not permissible under the CAA and vacated 
ozone interprecursor trading, i.e., the interprecursor trading 
provision in the Federal NNSR regulations. See Sierra Club v. EPA, 985 
F.3d 1055 (D.C. Cir. 2021). EPA subsequently removed the language 
allowing interprecursor trading for ozone from our NNSR regulations. 
See 86 FR 37918 (July 19, 2021). After the court decision and EPA's 
withdrawal of the interprecursor trading provisions, by letter dated 
October 26, 2021, Maryland withdrew SIP revision #20-02 with the 
interprecursor trading provisions in its entirety. Additionally, in a 
separate clarification letter dated October 26, 2021, MDE requested 
that EPA withdraw from EPA's consideration those portions of SIP 
revision #20-05 which related to ozone interprecursor trading. 
Consequently, the proposed rule on interprecursor trading that was 
published on October 27, 2020 (85 FR 68029) was withdrawn on March 7, 
2022. See 87 FR 12631.
    Other specific requirements of 40 CFR 51.1114, the requirements of 
CAA sections 110 and 172, the minimum SIP requirements of 40 CFR 
51.165, and the rationale for EPA's proposed action are explained in 
the NPRM, and will not be restated here. No public comments were 
received on the NPRM.

III. Final Action

    EPA is approving Maryland's June 3, 2020's SIP revision addressing 
the NNSR requirements for the 2015 8-hour ozone NAAQS for the 
Baltimore, MD, Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE, and 
Washington, DC-MD-VA nonattainment areas as a revision to the Maryland 
SIP. EPA has concluded that the State's submission fulfills the 40 CFR 
51.1114 revision requirement, meets the requirements of CAA sections 
110 and 172 and the minimum SIP requirements of 40 CFR 51.165.

IV. 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);
     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, 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).

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

[[Page 35423]]

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 August 9, 2022. 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 2015 8-hour Ozone NAAQS 
Certification SIP revision for NNSR 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

Adam Ortiz,
Regional Administrator, Region III.

    For the reasons stated in the preamble, the EPA amends 40 CFR part 
52 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 ``2015 8-Hour Ozone NAAQS Nonattainment New Source Review 
Requirements'' at the end of the table to read as follows:


Sec.  52.1070   Identification of plan.

* * * * *
    (e) * * *

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                                                                  State
    Name of non-regulatory SIP       Applicable geographic      submittal     EPA approval date     Additional
             revision                        area                 date                              explanation
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                                                  * * * * * * *
2015 8-Hour Ozone NAAQS            The Baltimore Area              6/3/2020  6/10/2022, [Insert   ..............
 Nonattainment New Source Review    (includes Anne Arundel,                   Federal Register
 Requirements.                      Baltimore, Carroll,                       citation].
                                    Harford, and Howard
                                    Counties and the city
                                    of Baltimore), the
                                    Philadelphia-Wilmington-
                                    Atlantic City Area
                                    (includes Cecil County
                                    in Maryland), and the
                                    Washington, DC Area
                                    (includes Calvert,
                                    Charles, Frederick,
                                    Montgomery, and Prince
                                    Georges Counties in
                                    Maryland).
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[FR Doc. 2022-12255 Filed 6-9-22; 8:45 am]
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