[Federal Register Volume 87, Number 201 (Wednesday, October 19, 2022)]
[Proposed Rules]
[Pages 63465-63467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-22393]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 55

[EPA-R03-OAR-2022-0776; FRL-10292-01-R3]


Outer Continental Shelf Air Regulations; Consistency Update for 
Maryland

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; consistency update.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
update a portion of the Outer Continental Shelf (OCS) Air Regulations. 
Requirements applying to OCS sources located within 25 miles of states' 
seaward boundaries must be updated periodically to remain consistent 
with the requirements of the corresponding onshore area (COA), as 
mandated by the Clean Air Act (CAA). The portion of the OCS air 
regulations that is being updated pertains to the requirements for OCS 
sources for which Maryland is the designated COA. The State of 
Maryland's requirements discussed in this document are proposed to be 
incorporated by reference into the Code of Federal Regulations (CFR) 
and listed in the appendix to the OCS air regulations.

DATES: Written comments must be received on or before November 18, 
2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2022-0776 at 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

[[Page 63466]]

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 www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Gwendolyn Supplee, Permits Branch 
(3AD10), Air & Radiation Division, U.S. Environmental Protection 
Agency, Region III, Four Penn Center, 1600 John F. Kennedy Boulevard, 
Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-
2763. Ms. Supplee can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On September 4, 1992, EPA promulgated 40 CFR part 55,\1\ which 
established requirements to control air pollution from OCS sources in 
order to attain and maintain Federal and state ambient air quality 
standards and to comply with the provisions of part C of title I of the 
CAA. The regulations at 40 CFR part 55 apply to all OCS sources except 
those located in the Gulf of Mexico west of 87.5 degrees longitude. See 
40 CFR 55.3(a). Section 328 of the CAA requires that for such sources 
located within 25 miles of a state's seaward boundary, the requirements 
shall be the same as would be applicable if the sources were located in 
the COA. Because the OCS requirements are based on onshore 
requirements, and onshore requirements may change, Section 328(a)(1) 
requires that EPA update the OCS requirements as necessary to maintain 
consistency with onshore requirements.
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    \1\ The reader may refer to the notice of proposed rulemaking, 
December 5, 1991 (56 FR 63774), and the preamble to the final rule 
promulgated September 4, 1992 (57 FR 40792) for further background 
and information on the OCS regulations.
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    Pursuant to 40 CFR 55.12, consistency reviews will occur: (1) at 
least annually where an OCS activity is occurring within 25 miles of a 
State seaward boundary; (2) upon receipt of a Notice of Intent (NOI) 
under 40 CFR 55.4; or (3) when a state or local agency submits a rule 
to EPA to be considered for incorporation by reference in 40 CFR part 
55. This proposed action is being taken in response to the submittal 
received by EPA on August 5, 2022, of a NOI, from US Wind, Inc., for 
the proposed installation of an up to 2-gigawatt offshore wind energy 
facility located approximately 10 nautical miles off the coast of 
Maryland. Public comments received in writing within 30 days of 
publication of this document will be considered by EPA before 
publishing a final rule.
    Section 328(a) of the CAA requires that EPA establish requirements 
to control air pollution from OCS sources located within 25 miles of 
States' seaward boundaries that are the same as onshore requirements. 
To comply with this statutory mandate, EPA must incorporate applicable 
onshore rules into 40 CFR part 55 as they exist onshore. This limits 
EPA's flexibility in deciding which requirements will be incorporated 
into 40 CFR part 55 and prevents EPA from making substantive changes to 
the requirements it incorporates. As a result, EPA may be incorporating 
rules into 40 CFR part 55 that do not conform to all of EPA's state 
implementation plan (SIP) guidance or certain requirements of the CAA. 
Consistency updates may result in the inclusion of state or local rules 
or regulations into 40 CFR part 55, even though the same rules may 
ultimately be disapproved for inclusion as part of the SIP. Inclusion 
in the OCS rule does not imply that a rule meets the requirements of 
the CAA for SIP approval, nor does it imply that the rule will be 
approved by EPA for inclusion in the SIP.

II. EPA Analysis

    EPA reviewed Maryland's rules for inclusion in 40 CFR part 55 to 
ensure that they are rationally related to the attainment or 
maintenance of Federal or state ambient air quality standards and 
compliance with part C of title I of the CAA, that they are not 
designed expressly to prevent exploration and development of the OCS, 
and that they are potentially applicable to OCS sources. See 40 CFR 
55.1. EPA has also evaluated the rules to ensure they are not arbitrary 
or capricious. See 40 CFR 55.12(e). In addition, EPA has excluded 
administrative or procedural rules, and requirements that regulate 
toxics which are not related to the attainment and maintenance of 
Federal and state ambient air quality standards.\2\
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    \2\ Each COA which has been delegated the authority to implement 
and enforce 40 CFR part 55 will use its administrative and 
procedural rules as onshore. However, in those instances where EPA 
has not delegated authority to implement and enforce 40 CFR part 55, 
EPA will use its own administrative and procedural requirements to 
implement the substantive requirements. See 40 CFR 55.14(c)(4).
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III. Proposed Action

    EPA last did a consistency update for Maryland on August 16, 2019 
(84 FR 34065). In that action, EPA incorporated by reference into 40 
CFR part 55 all of Maryland's regulations that EPA believed were 
relevant to the OCS requirements. For this action, EPA has reviewed 
changes that Maryland has made to its underlying regulatory programs. 
This action will have no effect on any provisions that were not subject 
to changes by Maryland and were also previously incorporated by 
reference into 40 CFR part 55 through EPA's August 16, 2019 rule. The 
rules that EPA proposes to incorporate are applicable provisions of the 
Code of Maryland Regulations (COMAR).
    The intended effect of proposing approval of the OCS requirements 
for the Maryland Department of the Environment (MDE) is to regulate 
emissions from OCS sources in accordance with the requirements for 
onshore sources. The Maryland regulatory changes EPA proposes to 
incorporate are: (1) Chapter 8, Control of Incinerators--COMAR 
26.11.08; (2) Chapter 17, Nonattainment Provisions for Major New 
Sources and Major Modifications General--COMAR 26.11.17; and (3) 
Chapter 20, Mobile Sources--COMAR 26.11.20. EPA is soliciting public 
comments on the issues discussed in this document. These comments will 
be considered before taking final action.

IV. Incorporation by Reference

    In this proposed rule, EPA is proposing to include in a final EPA 
rule regulatory text that includes incorporation by reference. In 
accordance with the requirements of 1 CFR 51.5, EPA is proposing to 
incorporate by reference the Code of Maryland Regulations air rules 
that are applicable to OCS sources and which are currently in effect. 
These regulations are described in Section III (``Proposed Action'') of 
this preamble. EPA has made, and will continue to make, these materials 
available through www.regulations.gov and at the EPA Region III Office. 
Please contact the person identified in the FOR FURTHER INFORMATION 
CONTACT section of this preamble for more information.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to establish 
requirements to control air pollution from OCS sources located within 
25 miles of states' seaward boundaries that are the same as onshore air 
pollution control requirements. To comply with this statutory mandate, 
the EPA must incorporate applicable onshore rules into 40 CFR part 55 
as they exist onshore. See 42 U.S.C. 7627(a)(1); 40 CFR 55.12. Thus, in 
promulgating OCS consistency updates, EPA's role is to maintain 
consistency between OCS

[[Page 63467]]

regulations and the regulations of onshore areas, provided that they 
meet the criteria of the CAA. Accordingly, this action simply updates 
the existing OCS requirements that have been revised since the last 
consistency review to make them consistent with requirements onshore, 
without the exercise of any policy direction by EPA. 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);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (PRA) (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).
    This proposed rulemaking incorporating by reference sections of 
COMAR does not apply on any Indian reservation land as defined in 18 
U.S.C. 1151 or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, this rule incorporating by reference sections of COMAR 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).
    This action does not impose any new information collection burden 
under the PRA. Office of Management and Budget (OMB) has previously 
approved the information collection activities contained in the 
existing regulations at 40 CFR part 55 and, by extension, this update 
to part 55, and has assigned OMB control number 2060-0249. This action 
does not impose a new information burden under PRA because this action 
only updates the state rules that are incorporated by reference into 40 
CFR part 55, appendix A.\3\
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    \3\ OMB's approval of the Information Collection Request (ICR) 
can be viewed at www.reginfo.gov.
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    EPA is proposing to incorporate the rules potentially applicable to 
sources for which the State of Maryland will be the COA that have been 
revised since the last consistency review. The rules that EPA proposes 
to incorporate are applicable provisions of the Code of Maryland 
Regulations.

List of Subjects in 40 CFR Part 55

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Carbon monoxide, Incorporation by reference, 
Intergovernmental relations, Lead, Nitrogen dioxide, Outer continental 
shelf, Ozone, Particulate matter, Permits, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

Adam Ortiz,
Regional Administrator, Region III.

    For the reasons set out in the preamble, title 40 of the Code of 
Federal Regulations, part 55, is proposed to be amended as follows.

PART 55--OUTER CONTINENTAL SHELF AIR REGULATIONS

0
1. The authority citation for part 55 continues to read as follows:

    Authority:  Section 328 of the Clean Air Act (42 U.S.C. 7401 et 
seq.) as amended by Pub. L. 101-549.

0
2. Section 55.14 is amended by revising paragraph (e)(10)(i)(A) to read 
as follows:


Sec.  55.14   Requirements that apply to OCS sources located within 25 
miles of States' seaward boundaries, by State.

* * * * *
    (e) * * *
    (10) * * *
    (i) * * *

(A) State of Maryland Requirements Applicable to OCS Sources, July 28, 
2022.

* * * * *
0
3. Appendix A to 40 CFR part 55 is amended by revising paragraph (a)(1) 
under the heading ``Maryland'' to read as follows:

Appendix A to Part 55--Listing of State and Local Requirements 
Incorporated by Reference into Part 55, by State

* * * * *

Maryland

    (a) State requirements.
    (1) The following State of Maryland requirements are applicable 
to OCS Sources, July 28, 2022, State of Maryland--Department of the 
Environment.
    The following sections of Code of Maryland Regulations (COMAR) 
Title 26 Subtitle 11:

COMAR 26.11.01--General Administrative Provisions (Effective as of 
December 6, 2018)
COMAR 26.11.02--Permits, Approvals, and Registrations (Effective as 
of February 12, 2018)
COMAR 26.11.03--Permits, Approvals, and Registration- Title V 
Permits (Effective as of November 12, 2010)
COMAR 26.11.05--Air Pollution Episode System (Effective as of 
November 12, 2010)
COMAR 26.11.06--General Emission Standards, Prohibitions, and 
Restrictions (Effective as of July 02, 2013)
COMAR 26.11.07--Open Fires (Effective as of November 12, 2010)
COMAR 26.11.08--Control of Incinerators (Effective as of May 4, 
2020)
COMAR 26.11.09--Control of Fuel-Burning Equipment, Stationary 
Internal Combustion Engines and Certain Fuel-Burning Installations 
(Effective as of December 6, 2018)
COMAR 26.11.13--Control of Gasoline and Volatile Organic Compound 
Storage and Handling (Effective as of July 21, 2014)
COMAR 26.11.15--Toxic Air Pollutants (Effective as of November 12, 
2010)
COMAR 26.11.16--Procedures Related to Requirements for Toxic Air 
Pollutants (Effective as of November 12, 2010)
COMAR 26.11.17--Nonattainment Provisions for Major New Sources and 
Major Modifications (Effective as of December 30, 2019)
COMAR 26.11.19--Volatile Organic Compounds from Specific Processes 
(Effective as of September 28, 2015)
COMAR 26.11.20--Mobile Sources (Effective as of February 7, 2022)
COMAR 26.11.26--Conformity (Effective as of November 12, 2010)
COMAR 26.11.35--Volatile Organic Compounds from Adhesives and 
Sealants (Effective as of November 12, 2010)
COMAR 26.11.36--Distributed Generation (Effective as of February 12, 
2018)
COMAR 26.11.39--Architectural and Industrial Maintenance (AIM) 
Coatings (Effective as of April 2016)
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[FR Doc. 2022-22393 Filed 10-18-22; 8:45 am]
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