MEMORANDUM  SEQ CHAPTER \h \r 1

TO:		Melanie King, EPA OAQPS/SPPD/ESG

FROM:	Bradley Nelson, EC/R, Inc.

DATE:		January 19, 2010

SUBJECT:	Summary of the November 17, 2009 Teleconference with the
American Petroleum Institute and the U.S. Environmental Protection
Agency to discuss API’s supplemental analyses for the  Proposed NESHAP
for Existing Stationary Reciprocating Ignition Internal Engines

1.0	INTRODUCTION

The American Petroleum Institute (API) requested this teleconference
with EPA to discuss the supplemental analyses that it sent to EPA on
November 2, 2009.  The analyses included cost effectiveness of control
options in the proposed national emission standards for hazardous air
pollutants (NESHAP), a support paper for management practices at area
sources located in rural areas, and a summary of stationary compression
ignition engine test data.  The supplemental analyses can be found in
the docket as Document ID Nos. EPA-HQ-OAR-2008-0708-0272, 0279 and 0280.
 This meeting summary will be available in the docket for this
rulemaking (Docket ID No. EPA-HQ-OAR-2008-0708).  The proposed NESHAP
for existing stationary RICE was published in the Federal Register on
March 5, 2009 (74 FR 9698).

2.0	ATTENDEES

U.S. Environmental Protection Agency

Melanie King, OAQPS/SPPD/ESG

Michael Horowitz, OGC

American Petroleum Institute

Matt Todd, API

Jeff Panek, IES

Roger Zygmunt, Shell

Jenny Yang, Marathon

Tom McGrath, IES

Paul Little, Air Hygiene

Jeff Adams, BP

Tom Monahan, ExxonMobil

Jim McCarthy, IES

Lynn Reed, ONEOK

Janet Bounds, Chevron

Tim Helbig, ONEOK

EC/R Incorporated

Bradley Nelson

3.0	SUMMARY OF MEETING

API indicated that review of the emissions data used to develop the
maximum achievable control technology (MACT) floor for stationary spark
ignition (SI) engines found test data using invalid test methods and the
wrong classification of SI engines between rich-burn and lean-burn
engines.  API also found the same kind of issues with the test data used
to develop the MACT floor for stationary CI engines.  API stated that
the MACT floor for CI engines between 50 and 500 horsepower (HP) was
based on data for CI engines greater than 1,000 HP.  API noted that
these 50 to 500 HP engines are not like the larger engines and have
different emission characteristics.  EPA asked why 50 to 500 HP CI
engines are different than larger CI engines.  API responded that these
engines are designed differently to operate at variable loads, whereas
larger engines are designed to operate at a steady-state load.

API asked if EPA intended to subcategorize cyclic duty engines, such as
air compressors or welding equipment.  API does not believe that
catalytic controls are effective on these engines.  EPA noted that
catalytic controls have been installed on mobile engines for many years.
 API responded that mobile engines are different than mobile engines and
those mobile engines have a shorter life cycle than stationary engines.
EPA responded that no final decisions have been made in terms of
subcategories for CI engines.

The next topic of discussion was API’s proposal to require management
practices for area source SI engines less than or equal to 500 HP
located in rural areas.  API stated that many of these engines are
located in rural areas and do not affect public health.  API stated that
it is generally supportive of the oil change and air filter requirements
in the proposed rule; however API indicated that it would like a
provision that allows an oil analysis to be done to see if the oil needs
to be changed.  EPA asked for more information on the oil analysis
proposal.  API stated that engine manufacturers or lube oil dealers can
provide information on oil analysis plans.  EPA responded that it needed
more specifics for an oil analysis program.  API stated that it would
provide EPA with the information.

E C/R Incorporated	Providing Environmental Technical Support Since 1989

  PAGE   \* MERGEFORMAT  2


[Federal Register Volume 79, Number 200 (Thursday, October 16, 2014)]
[Rules and Regulations]
[Pages 62010-62019]
[FR Doc No: 2014-24256]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2014-0177; FRL-9917-67-Region-3]

Approval and Promulgation of Air Quality Implementation Plans;
Maryland; Infrastructure Requirements for the 2008 Ozone National
Ambient Air Quality Standards

AGENCY: Environmental Protection Agency.

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
pursuant to the Clean Air Act (CAA). Whenever new or revised National
Ambient Air Quality Standards (NAAQS) are promulgated, the CAA requires
states to submit a plan for the implementation, maintenance and
enforcement of such NAAQS. The plan is required to address the basic
program elements including, but not limited to regulatory structure,
monitoring, modeling, legal authority, and adequate resources necessary
to assure attainment

and maintenance of the standards. These elements are referred to as
infrastructure requirements. The State of Maryland has made a submittal
addressing the infrastructure requirements for the 2008 ozone NAAQS.

DATES: This final rule is effective on November 17, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2014-0177. All documents in the docket are listed in
the www.regulations.gov Web site. Although listed in the electronic
docket, some information is not publicly available, i.e., 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 either electronically through www.regulations.gov or in hard
copy for public inspection during normal business hours at the Air
Protection Division, U.S. Environmental Protection Agency, Region III,
1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State
submittal are available at the Maryland Department of the Environment,
1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230.

FOR FURTHER INFORMATION CONTACT: Ruth Knapp, (215) 814-219, or by email
at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    On May 2, 2014 (79 FR 25054), EPA published a notice of proposed
rulemaking (NPR) for the State of Maryland. In the NPR, EPA proposed
approval of several infrastructure elements to satisfy several
requirements of section 110(a)(2) of the CAA for the 2008 ozone NAAQS.
The formal SIP revision (12-12) was submitted by the State of Maryland
on December 27, 2012.

II. Summary of SIP Revision

    In the NPR, EPA proposed approval of the following infrastructure
elements: Sections 110(a)(2)(A), (B), (C), D(i)(II), D(ii), (E), (F),
(G), (H), (J), (K), (L), and (M) of the CAA. The proposed rulemaking
does not include action on section 110(a)(2)(I) of the CAA which
pertains to the requirements of part D, Title I of the CAA as explained
in the NPR. The proposed rulemaking action also did not include any
action on Maryland's December 27, 2012 SIP submission addressing
section 110(a)(2)(D)(i)(I). EPA provided in the proposal that it will
later take separate action on Maryland's December 27, 2012 SIP
submission for the 2008 ozone NAAQS for section 110(a)(2)(D)(i)(I). The
rationale supporting EPA's proposed rulemaking action, including the
scope of infrastructure SIPs in general, is explained in the NPR and
the technical support document (TSD) accompanying the NPR and will not
be restated here. The TSD is available online at www.regulations.gov,
Docket ID Number EPA-R03-OAQ-2014-0177.

III. Infrastructure SIPS and Greenhouse Gases

    With respect to elements (C) and (J) in section 110(a)(2) of the
CAA, EPA interprets the CAA to require each state to make an
infrastructure SIP submission for a new or revised NAAQS that
demonstrates that the air agency has a complete Prevention of
Significant Deterioration (PSD) permitting program meeting the current
requirements for all regulated New Source Review (NSR) pollutants. The
requirements of element (D)(i)(II) in Section 110(a)(2) which requires
a demonstration that emissions from sources in the state do not
interfere with the PSD program of another state, may also be satisfied
by demonstrating the air agency has a complete PSD permitting program
correctly addressing all regulated NSR pollutants. Maryland has shown
that it currently has a PSD program in place that covers all regulated
NSR pollutants, including greenhouse gases (GHGs).
    On June 23, 2014, the United States Supreme Court issued a decision
addressing the application of PSD permitting requirements to GHG
emissions. Utility Air Regulatory Group v. Environmental Protection
Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA may not
treat GHGs as an air pollutant for purposes of determining whether a
source is a major source required to obtain a PSD permit. The Court
also said that the EPA could continue to require that PSD permits,
otherwise required based on emissions of pollutants other than GHGs,
contain limitations on GHG emissions based on the application of Best
Available Control Technology (BACT). In order to act consistently with
its understanding of the Court's decision pending further judicial
action to effectuate the decision, the EPA is not continuing to apply
EPA regulations that would require that SIPs include permitting
requirements that the Supreme Court found impermissible. Specifically,
EPA is not applying the requirement that a state's SIP-approved PSD
program require that sources obtain PSD permits when GHGs are the only
pollutant (i) that the source emits or has the potential to emit above
the major source thresholds, or (ii) for which there is a significant
emissions increase and a significant net emissions increase from a
modification (e.g. 40 CFR 51.166(b)(48)(v)). EPA anticipates a need to
revise federal PSD rules in light of the Supreme Court opinion. In
addition, EPA anticipates that many states will revise their existing
SIP-approved PSD programs in light of the Supreme Court's decision. The
timing and content of subsequent EPA actions with respect to the EPA
regulations and state PSD program approvals are expected to be informed
by additional legal process before the United States Court of Appeals
for the District of Columbia Circuit. At this juncture, EPA is not
expecting states to have revised their PSD programs for purposes of
infrastructure SIP submissions and is only evaluating such submissions
to assure that the state's program correctly addresses GHGs consistent
with the Supreme Court's decision.
    At present, EPA has determined the Maryland SIP is sufficient to
satisfy elements C, D(i)(II), and J of section 110(a)(2) with respect
to GHGs because the PSD permitting program previously-approved by EPA
into the SIP continues to require that PSD permits (otherwise required
based on emissions of pollutants other than GHGs) contain limitations
on GHG emissions based on the application of BACT. Although the
approved Maryland PSD permitting program may currently contain
provisions that are no longer necessary in light of the Supreme Court
decision, this does not render the infrastructure SIP submission
inadequate to satisfy elements (C), (D)(i)(II), and (J) in section
110(a)(2) of the CAA. The SIP contains the necessary PSD requirements
at this time, and the application of those requirements is not impeded
by the presence of other previously-approved provisions regarding the
permitting of sources of GHGs that EPA does not consider necessary at
this time in light of the Supreme Court decision. Accordingly, the
Supreme Court decision does not affect EPA's earlier proposed approval
of Maryland's 2008 ozone infrastructure SIP as to the requirements of
elements (C), (D)(i)(II), and (J) for Section 110(a)(2). EPA is taking
final action to approve these elements.

IV. Public Comments and EPA's Responses

    EPA received two sets of comments on the May 2, 2014 proposed
rulemaking action on Maryland's 2008 ozone ``infrastructure'' SIP. The

comments were submitted by the State of Maryland and the Sierra Club.
The State of Maryland made a brief comment related to the subject
matter of transported emissions while Sierra Club made more substantive
comments on a variety of subjects including transport of emissions. A
full set of these comments is provided in the docket for today's final
rulemaking action.

A. Maryland's Comment

    Comment: The State of Maryland inquired regarding EPA's plans to
take action on the transport portion of its 2008 ozone infrastructure
SIP submittal in light of the recent Supreme Court decision in EPA et
al v. EME Homer City Generation, L.P. et al, 134 S. Ct. 1584, 2014 U.S.
LEXIS 3108 (2014).\1\
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    \1\ The Maryland comment also inquired whether EPA would
withdraw prior approvals of ozone infrastructure SIPs for other
states which did not include action on section 110(a)(2)(D)(i)(I).
As Maryland's comment about other state SIPs and EPA rulemaking on
other states' SIPs is not relevant to this rulemaking, EPA need not
provide any further response to this comment.
---------------------------------------------------------------------------

    Response: In this rulemaking, EPA is not taking final action with
respect to the SIP revision addressing the provisions in section
110(a)(2)(D)(i)(I) of the CAA--the portion of the good neighbor
provision which addresses emissions that significantly contribute to
nonattainment or interfere with maintenance of the NAAQS in another
state. EPA did not propose to take any action in the NPR with respect
to Maryland's obligations pursuant to section 110(a)(2)(D)(i)(I). As
indicated in EPA's proposal, EPA anticipates taking later, separate
action on the section 110(a)(2)(D)(i)(I) portion of Maryland's December
27, 2012 SIP submission for the 2008 ozone NAAQS.

B. Sierra Club Comments:

    Comment 1: Sierra Club contends that EPA cannot approve the
Maryland 2008 ozone infrastructure SIP revision because the plain
language of section 110(a)(2)(A) of the CAA, legislative history of the
CAA, case law, EPA regulations, such as 40 CFR 51.112(a), and EPA
interpretations in rulemakings, require the inclusion of enforceable
emission limits in an infrastructure SIP to prevent NAAQS violations
\2\ in areas not designated nonattainment. Specifically, Sierra Club
cites air monitoring reports for Kent County, Maryland indicating
violations of the NAAQS based on 2010-2012 and 2011-2013 design values.
The commenter alleges that these violations demonstrate that the ozone
infrastructure SIP fails to impose necessary restrictions on ozone
precursor sources sufficient to ensure attainment and maintenance of
the 2008 ozone NAAQS and compliance with section 110(a)(2)(A). The
commenter claims Maryland must revise its infrastructure SIP to include
enforceable emission limits and other measures to ensure attainment and
maintenance of the 2008 ozone NAAQS. The commenter asserts the existing
emission limits applicable to coal plants in Maryland's SIP were not
intended to ensure maintenance of an 8-hour standard. The commenter
asserts that Maryland's infrastructure SIP relies on the Maryland
Healthy Air Act (HAA) for nitrogen oxide (NOX) limitations
on Maryland's coal-fired power plants yet the HAA imposes only annual
and ozone season caps on NOX at coal-fired power plants
while the 8-hour ozone NAAQS requires shorter emissions averaging
times. The commenter also urges EPA to encourage Maryland to
expeditiously finalize new regulations on coal-fired power plants which
Maryland is currently drafting which the commenter claims would require
installation and operation of state-of-the-art controls on the largest
contributors of NOX in Maryland. Until these new regulations
are finalized, the commenter claims ``Maryland has not tackled
emissions'' from the largest NOX sources and has not
demonstrated its SIP is sufficient to attain and maintain the 2008
ozone NAAQS. Therefore, the commenter states EPA cannot approve
Maryland's infrastructure SIP. Finally, the commenter states Maryland
should use its infrastructure SIP process to address current ozone
exceedances in Kent County and should prevent Kent County from being
designated nonattainment for the 2008 ozone NAAQS by adding appropriate
enforceable NOX emission limits on sources. The commenter
states EPA cannot approve the infrastructure SIP and Maryland must
amend its SIP to ensure the largest NOX sources cannot
contribute to exceedances of the 8-hour ozone NAAQS.
---------------------------------------------------------------------------

    \2\ The commenter frequently also uses the term ``exceedance''
in relation to the NAAQS. EPA believes that in many contexts the
commenter meant a ``violation'' of the NAAQS. In general, the term
exceedance means that the level of the pollutant is above the level
of the NAAQS. However, for the 2008 8-hour ozone NAAQS, the form of
the NAAQS allows some ``exceedances'' (levels above the 0.075 parts
per million (ppm) 8-hour average) in a three year period before an
area would be ``violating'' or ``not attaining'' the NAAQS.
---------------------------------------------------------------------------

    Response 1: EPA disagrees with the commenter that the statute is
clear on its face that infrastructure SIPs must include detailed
attainment and maintenance plans for all areas of the state and must be
disapproved if air quality data that became available late in the
process or after the SIP was due and submitted changes the status of
one or more areas within the state. The commenter's specific arguments
that the statutory language, legislative history, case law, EPA
regulations, and prior rulemaking actions by EPA mandate the narrow
interpretation they advocate are addressed below in subsections (1)
through (5) of this response. EPA believes that section 110(a)(2)(A) is
reasonably interpreted to require states to submit SIPs that reflect
the first step in their planning for attaining and maintaining a new or
revised NAAQS and that they contain enforceable control measures and a
demonstration that the state has the available tools and authority to
develop and implement plans to attain and maintain the NAAQS.
    As an initial matter, EPA disagrees that air quality monitoring
data that became available, as here, four or more years following
promulgation of the 2008 ozone NAAQS and shortly after the SIP was
submitted in December 2012 provides a basis for disapproving the
Maryland ozone infrastructure SIP. States must develop SIPs based on
the information they have during the SIP development process, which
preceded December 2012 (when Maryland submitted its SIP), and data that
becomes available near the end of that process or after that process is
completed cannot undermine the reasonable assumptions that were made by
the state based on the information it had available as it developed the
plan. Thus, the design values for 2012 and 2013 cited by the commenter
(based respectively on the three-years of data from 2010-2012 and 2011-
2013) should not be considered in determining whether the SIP should be
approved.\3\ The suggestion that Maryland's ozone infrastructure SIP
must include measures addressing violations of the standard that did
not occur until shortly before or after the SIP was due and submitted,
as is the case here, cannot be supported. The CAA provides states with
three years to develop infrastructure SIPs and states cannot reasonably
be expected to address the annual change in an area's design value for
each year over that period, nor to predict the air quality data in
periods after development and submission of the SIPs. Moreover, the CAA
recognizes and has provisions to address changes in air quality over
time, such as an area slipping from attainment to nonattainment or
changing from nonattainment to attainment. These

include provisions providing for redesignation in section 107(d) and
provisions in section 110(k)(5) allowing EPA to call on the state to
revise its SIP, as appropriate.
---------------------------------------------------------------------------

    \3\ The design values for 2012 and 2013 were certified in April
2013 and April 2014 respectively.
---------------------------------------------------------------------------

    The commenter suggests that EPA must disapprove the Maryland ozone
infrastructure SIP because the fact that an area in Maryland now has
air quality data slightly above the standard proves that the
infrastructure SIP is inadequate to demonstrate attainment and
maintenance for that area.\4\ EPA disagrees with the commenter because
EPA does not believe that section 110(a)(2)(A) requires detailed
planning SIPs demonstrating either attainment or maintenance for
specific geographic areas of the state. The infrastructure SIP is
triggered by promulgation of the NAAQS, not designation. Moreover,
infrastructure SIPs are due three years following promulgation of the
NAAQS and designations are not due until two years (or in some cases
three years) following promulgation of the NAAQS. Thus, during a
significant portion of the period that a state has available for
developing the infrastructure SIP, it does not know what the
designation will be for individual areas of the state.\5\ In light of
the structure of the CAA, EPA's long-standing position regarding
infrastructure SIPs is that they are general planning SIPs to ensure
that the state has adequate resources and authority to implement a
NAAQS in general throughout the state and not detailed attainment and
maintenance plans for each individual area of the state.
---------------------------------------------------------------------------

    \4\ EPA notes that preliminary monitoring data for 2014
indicates that the 2012-2014 design value for Kent County, Maryland
will meet the 2008 ozone NAAQS. The 2014 data is not complete,
quality assured or certified at this time.
    \5\ While it is true that there may be some monitors within a
state with values so high as to make a nonattainment designation of
the county with that monitor almost a certainty, the geographic
boundaries of the nonattainment area associated with that monitor
would not be known until EPA issues final designations. Moreover,
the area of concern to the commenter does not fit that description
in any event.
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    EPA's interpretation that infrastructure SIPs are more general
planning SIPs is consistent with the statute as understood in light of
its history and structure. When Congress enacted the CAA in 1970, it
did not include provisions requiring states and the EPA to label areas
as attainment or nonattainment. Rather, states were required to include
all areas of the state in ``air quality control regions'' (AQCRs) and
section 110 set forth the core substantive planning provisions for
these AQCRs. At that time, Congress anticipated that states would be
able to address air pollution quickly pursuant to the very general
planning provisions in section 110 and could bring all areas into
compliance with the NAAQS within five years. Moreover, at that time,
section 110(a)(2)(A)(i) specified that the section 110 plan provide for
``attainment'' of the NAAQS and section 110(a)(2)(B) specified that the
plan must include ``emission limitations, schedules, and timetables for
compliance with such limitations, and such other measures as may be
necessary to insure attainment and maintenance [of the NAAQS].'' In
1977, Congress recognized that the existing structure was not
sufficient and many areas were still violating the NAAQS. At that time,
Congress for the first time added provisions requiring states and EPA
to identify whether areas of the state were violating the NAAQS (i.e.,
were nonattainment) or were meeting the NAAQS (i.e., were attainment)
and established specific planning requirements in section 172 for areas
not meeting the NAAQS. In 1990, many areas still had air quality not
meeting the NAAQS and Congress again amended the CAA and added yet
another layer of more prescriptive planning requirements for each of
the NAAQS, with the primary provisions for ozone in section 182. At
that same time, Congress modified section 110 to remove references to
the section 110 SIP providing for attainment, including removing pre-
existing section 110(a)(2)(A) in its entirety and renumbering
subparagraph (B) as section 110(a)(2)(A). Additionally, Congress
replaced the clause ``as may be necessary to insure attainment and
maintenance [of the NAAQS]'' with ``as may be necessary or appropriate
to meet the applicable requirements of this chapter.'' Thus, the CAA
has significantly evolved in the more than 40 years since it was
originally enacted. While at one time section 110 did provide the only
detailed SIP planning provisions for states and specified that such
plans must provide for attainment of the NAAQS, under the structure of
the current CAA, section 110 is only the initial stepping-stone in the
planning process for a specific NAAQS. And, more detailed, later-
enacted provisions govern the substantive planning process, including
planning for attainment of the NAAQS.
    EPA shares the commenter's concern regarding the area that is
monitoring violations of the 2008 8-hour ozone NAAQS based on its 2012
and 2013 design values and is working with state and local agencies to
address such violations. By approving Maryland's infrastructure SIP
revision, EPA is affirming that Maryland has sufficient authority to
take the types of actions required by the CAA in order to bring such
areas back into attainment. For all of these reasons, EPA disagrees
with the commenter that EPA must disapprove an infrastructure SIP
revision if there are monitored violations of the standard in the state
and the section 110(a)(2)(A) revision does not have detailed plans for
demonstrating how the state will bring that area into attainment or for
demonstrating maintenance. EPA believes the state has met the basic
structural SIP requirements appropriate at the point in time EPA is
acting upon the submittal. EPA disagrees with the commenter that
Maryland should use the infrastructure SIP required by section
110(a)(1) and (2) of the CAA to address any ``exceedances'' of the 2008
ozone NAAQS or to avoid a designation of nonattainment for Kent County.
Other provisions in part D of the CAA address the attainment planning
process while section 107(d) of the CAA addresses designations of areas
for attainment or nonattainment with a NAAQS. While Maryland may decide
to regulate additional sources for pursuing emission reductions in the
State to strengthen its SIP, such actions are not relevant to our
approval of Maryland's infrastructure SIP in accordance with section
110 of the CAA. As discussed previously, our inquiry at this juncture
is whether Maryland's SIP has the required structural elements.
    Moreover, as addressed in EPA's proposed approval for this rule,
Maryland identified existing emission reduction measures in the SIP
that control emissions of volatile organic compounds (VOCs) and
NOX. Maryland's SIP revision reflects several provisions
that have the ability to reduce ground level ozone and its precursors.
The Maryland SIP relies on measures and programs used to address
previous ozone NAAQS. Because there is no substantive difference
between the previous ozone NAAQS and the more recent ozone NAAQS, other
than the level of the standard, the provisions relied on by Maryland
will provide benefits for the new NAAQS; in other words, the measures
reduce overall ground-level ozone and its precursors and are not
limited to reducing ozone levels to meet one specific NAAQS.\6\
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    \6\ Thus, EPA disagrees with the commenter's assertion that
Maryland has not addressed the largest emitters of NOX in
the State. Maryland's HAA specifically imposed NOX
emission limits on coal-fired power plants in Maryland.
---------------------------------------------------------------------------

    Finally, EPA appreciates the commenter's support of Maryland's
pursuit of additional NOX emission

limitations at coal-fired power plants in Maryland. Additional
NOX regulations on emissions will likely strengthen the
Maryland SIP and lead to additional reductions in NOX
emissions benefiting Maryland. However, EPA does not believe that
approval of the infrastructure SIP is contingent on Maryland adopting
this rule. Congress established the CAA such that each state has
primary responsibility for assuring air quality within the state and
determines an emission reduction program for its areas subject to EPA
approval, with such approval dependent upon whether the SIP as a whole
meets the applicable requirements of the CAA. See Commonwealth of
Virginia, et al., v. EPA, 108 F.3d 1397, 1410 (D.C. Cir. 1997) (citing
Natural Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1123
(DCCir.1995)). EPA cannot condition approval of the Maryland
infrastructure SIP upon inclusion of a particular emission reduction
program as long as the SIP otherwise meets the requirements of the CAA.
As explained in the NPR and the TSD, Maryland's ozone infrastructure
SIP meets the requirements in section 110(a)(2).\7\
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    \7\ As stated previously, EPA will take later, separate action
on Maryland's ozone infrastructure SIP submittal regarding the
portion of the SIP submittal addressing section 110(a)(2)(D)(i)(I).
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1. The Plain Language of the CAA
    Comment 2: The commenter states that on its face the CAA ``requires
I-SIPs to be adequate to prevent exceedances of the NAAQS.'' In
support, the commenter quotes the language in section 110(a)(1) which
requires states to adopt a plan for implementation, maintenance, and
enforcement of the NAAQS and the language in section 110(a)(2)(A) which
requires SIPs to include enforceable emissions limitations as may be
necessary to meet the requirements of the CAA and which commenter
claims include the maintenance plan requirement. Sierra Club notes the
CAA definition of emission limit and reads these provisions together to
require ``enforceable emission limits on source emissions sufficient to
ensure maintenance of the NAAQS.''
    Response 2: EPA disagrees that section 110 is clear ``on its face''
and must be interpreted in the manner suggested by Sierra Club. As
explained previously, section 110 is only one provision that is part of
the complicated structure governing implementation of the NAAQS program
under the CAA, as amended in 1990, and it must be interpreted in the
context of not only that structure, but also of the historical
evolution of that structure. In light of the revisions to section 110
since 1970 and the later-promulgated and more specific planning
requirements of the CAA, EPA interprets the requirement in section
110(a)(2)(A) that the plan provide for ``implementation, maintenance
and enforcement'' to mean that the infrastructure SIP must contain
enforceable emission limits that will aid in attaining and/or
maintaining the NAAQS and that the state demonstrate that it has the
necessary tools to implement and enforce a NAAQS, such as adequate
state personnel and an enforcement program. With regard to the
requirement for emission limitations, EPA has interpreted this to mean
for purposes of section 110, that the state may rely on measures
already in place to address the pollutant at issue or any new control
measures that the state may choose to submit. As EPA stated in
``Guidance on Infrastructure State Implementation Plan (SIP) Elements
under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' dated September
13, 2013 (Infrastructure SIP Guidance), ``[t]he conceptual purpose of
an infrastructure SIP submission is to assure that the air agency's SIP
contains the necessary structural requirements for the new or revised
NAAQS, whether by establishing that the SIP already contains the
necessary provisions, by making a substantive SIP revision to update
the SIP, or both. Overall, the infrastructure SIP submission process
provides an opportunity . . . to review the basic structural
requirements of the air agency's air quality management program in
light of each new or revised NAAQS.'' Infrastructure SIP Guidance at p.
2.
    The commenter makes general allegations that Maryland does not have
sufficient protective measures addressing ozone pollution. EPA
addressed the adequacy of Maryland's infrastructure SIP for
110(a)(2)(A) for purposes of meeting applicable requirements of the CAA
in the TSD accompanying the May 2, 2014 NPR and explained why the SIP
includes enforceable emission limitations and other control measures.
These include applicable portions of COMAR 26.11 such as COMAR
26.11.02, and COMAR <IP_ADDRESS>. As discussed in the TSD accompanying
the May 2, 2014 NPR, Maryland's enforceable emission limits, control
measures, and related SIP approved regulations can be found in 40 CFR
52.1070. These include enforceable emissions limits, control measures,
fees, and compliance schedules adopted for the 1-hour and 1997 8-hour
ozone NAAQS but which will also provide ozone reductions benefits for
the 2008 ozone NAAQS.
2. The Legislative History of the CAA
    Comment 3: Sierra Club cites two excerpts from the legislative
history of the CAA Amendments of 1970 claiming they support an
interpretation that SIP revisions under CAA section 110 must include
emissions limitations sufficient to show maintenance of the NAAQS in
all areas of Maryland. Sierra Club also contends that the legislative
history of the CAA supports the interpretation that infrastructure SIPs
under section 110(a)(2) must include enforceable emission limitations,
citing the Senate Committee Report and the subsequent Senate Conference
Report accompanying the 1970 CAA.
    Response 3: As provided in the previous response, the CAA, as
enacted in 1970, including its legislative history, cannot be
interpreted in isolation from the later amendments that refined the
structure of the Act and deleted relevant language from section 110
concerning demonstrating attainment. In any event, the two excerpts of
legislative history the commenter cites merely provide that states
should include enforceable emission limits in their SIPs and they do
not mention or otherwise address whether states are required to include
maintenance plans for all areas of the state as part of the
infrastructure SIP. As provided earlier in this rulemaking action, the
TSD for the proposed rule explains why the SIP includes enforceable
emissions limitations and meets the requirement in section
110(a)(2)(A).
3. Case Law
    Comment 4: Sierra Club also discusses several cases applying the
CAA which Sierra Club claims support their contention that courts have
been clear that section 110(a)(2)(A) requires enforceable emissions
limits in infrastructure SIPs to prevent violations of the NAAQS.
Sierra Club first cites to language in Train v. NRDC, 421 U.S. 60, 78
(1975), addressing the requirement for ``emission limitations'' and
stating that emission limitations ``are specific rules to which
operators of pollution sources are subject, and which if enforced
should result in ambient air which meet the national standards.''
Sierra Club also cites to Pennsylvania Dept. of Envtl. Resources v.
EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA
directs EPA to withhold approval of a SIP where it does not ensure
maintenance of the NAAQS and Mision Industrial, Inc. v. EPA, 547 F.2d
123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the

CAA of 1970. The commenter contends that the 1990 Amendments do not
alter how courts have interpreted the requirements of section 110,
quoting Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470
(2004) which in turn quoted section 110(a)(2)(A) of the CAA and also
stated that ``SIPs must include certain measures Congress specified''
to ensure attainment of the NAAQS. The commenter also quotes several
additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666
F.3d 1174, 1180 (9th Cir. 2012) (``The Clean Air Act directs states to
develop implementation plans--SIPs--that `assure' attainment and
maintenance of [NAAQS] through enforceable emissions limitations'');
Hall v. EPA 273 F.3d 1146, 1153 (9th Cir. 2001) (``Each State must
submit a [SIP] that specif[ies] the manner in which [NAAQS] will be
achieved and maintained within each air quality control region in the
State''). Finally, the commenter cites Mich. Dept. of Envtl. Quality v.
Browner, 230 F.3d 181 (6th Cir. 2000) for the proposition that EPA may
not approve a SIP revision that does not demonstrate how the rules
would not interfere with attainment and maintenance of the NAAQS.
    Response 4: None of the cases the commenter cites support the
commenter's contention that section 110(a)(2)(A) is clear that
infrastructure SIPs must include detailed plans providing for
attainment and maintenance of the NAAQS in all areas of the state nor
do they shed light on how section 110(a)(2)(A) may reasonably be
interpreted. With the exception of Train, none of the cases the
commenter cites concerned the interpretation of CAA section
110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 Act). Rather, the
courts reference section 110(a)(2)(A) (or section 110(a)(2)(B) of the
pre-1990 CAA) in the background section of decisions in the context of
a challenge to an EPA action on revisions to a SIP that was required
and approved as meeting other provisions of the CAA or in the context
of an enforcement action.
    In Train, 421 U.S. 60, a case that was decided almost 40 years ago,
the Court was addressing a state revision to an attainment plan
submission made pursuant to section 110 of the CAA, the sole statutory
provision at that time regulating such submissions. The issue in that
case concerned whether changes to requirements that would occur before
attainment was required were variances that should be addressed
pursuant to the provision governing SIP revisions or were
``postponements'' that must be addressed under section 110(f) of the
CAA of 1970, which contained prescriptive criteria. The Court concluded
that EPA reasonably interpreted section 110(f) not to restrict a
state's choice of the mix of control measures needed to attain the
NAAQS and that revisions to SIPs that would not impact attainment of
the NAAQS by the attainment date were not subject to the limits of
section 110(f). Thus the issue was not whether a section 110 SIP needs
to provide for attainment or whether emissions limits are needed as
part of the SIP; rather the issue was which statutory provision
governed when the state wanted to revise the emission limits in its SIP
if such revision would not impact attainment or maintenance of the
NAAQS. To the extent the holding in the case has any bearing on how
section 110(a)(2)(A) might be interpreted, it is important to realize
that in 1975, when the opinion was issued, section 110(a)(2)(B) (the
predecessor to section 110(a)(2)(A)) expressly referenced the
requirement to attain the NAAQS, a reference that was removed in 1990.
    The decision in Pennsylvania Dept. of Envtl. Resources was also
decided based on the pre-1990 provision of the CAA. At issue was
whether EPA properly rejected a revision to an approved plan where the
inventories relied on by the state for the updated submission had gaps.
The Court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of
EPA's disapproval, but did not provide any interpretation of that
provision. Yet, even if the Court had interpreted that provision, EPA
notes that it was modified by Congress in 1990; thus, this decision has
little bearing on the issue here.
    At issue in Mision Industrial, 547 F.2d 123, was the definition of
``emissions limitation'' not whether section 110 requires the state to
demonstrate how all areas of the state will attain and maintain the
NAAQS as part of their infrastructure SIPs. The language from the
opinion the commenter quotes does not interpret but rather merely
describes section 110(a)(2)(A). The commenter does not raise any
concerns about whether the measures relied on by the state in the
infrastructure SIP are ``emissions limitations'' and the decision in
this case has no bearing here.\8\ In Mont. Sulphur & Chem. Co., 666
F.3d 1174, the Court was reviewing a federal implementation plan that
EPA promulgated after a long history of the state failing to submit an
adequate state implementation plan. The Court cited generally to
sections 107 and 110(a)(2)(A) of the CAA for the proposition that SIPs
should assure attainment and maintenance of NAAQS through emission
limitations but this language was not part of the Court's holding in
the case. The commenter suggests that Alaska Dept. of Envtl.
Conservation, 540 U.S. 461, stands for the proposition that the 1990
CAA Amendments do not alter how courts interpret section 110. This
claim is inaccurate. Rather, the Court quoted section 110(a)(2)(A),
which, as noted previously, differs from the pre-1990 version of that
provision and the Court makes no mention of the changed language.
Furthermore, the commenter also quotes the Court's statement that
``SIPs must include certain measures Congress specified'' but that
statement specifically referenced the requirement in section
110(a)(2)(C), which requires an enforcement program and a program for
the regulation of the modification and construction of new sources.
Notably, at issue in that case was the state's ``new source''
permitting program, not its infrastructure SIP.
---------------------------------------------------------------------------

    \8\ While the commenter does contend that the State shouldn't be
allowed to rely on emission reductions that were developed for the
prior ozone standards (which we address above), it does not claim
that any of the measures are not ``emissions limitations'' within
the definition of the CAA.
---------------------------------------------------------------------------

    Two of the cases the commenter cites, Mich. Dept. of Envtl.
Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret CAA section
110(l), the provision governing ``revisions'' to plans, and not the
initial plan submission requirement under section 110(a)(2) for a new
or revised NAAQS, such as the infrastructure SIP at issue in this
instance. In those cases, the courts cited to section 110(a)(2)(A)
solely for the purpose of providing a brief background of the CAA.
4. EPA Regulations, Such as 40 CFR 51.112(a)
    Comment 5: The commenter cites to 40 CFR 51.112(a), providing that
``[e]ach plan must demonstrate that the measures, rules and regulations
contained in it are adequate to provide for the timely attainment and
maintenance of the [NAAQS].'' The commenter asserts that this
regulation requires all SIPs to include emissions limits necessary to
ensure attainment of the NAAQS. The commenter states that ``[a]lthough
these regulations were developed before the Clean Air Act separated
infrastructure SIPs from nonattainment SIPs--a process that began with
the 1977 amendments and was completed by the 1990 amendments--the
regulations apply to I-SIPs.'' The commenter relies on a statement in
the preamble to the 1986 action restructuring and consolidating

provisions in part 51, in which EPA stated that ``[i]t is beyond the
scope of th[is] rulemaking to address the provisions of Part D of the
Act . . . .'' 51 FR 40656, 40656 (November 7, 1986).
    Response 5: The commenter's reliance on 40 CFR 51.112 to support
its argument that infrastructure SIPs must contain emission limits
``adequate to prohibit NAAQS exceedances'' and adequate or sufficient
to ensure the maintenance of the NAAQS is not supported. As an initial
matter, EPA notes and the commenter recognizes this regulatory
provision was initially promulgated and ``restructured and
consolidated'' prior to the CAA Amendments of 1990, in which Congress
removed all references to ``attainment'' in section 110(a)(2)(A). And,
it is clear on its face that 40 CFR 51.112 applies to plans
specifically designed to attain the NAAQS. EPA interprets these
provisions to apply when states are developing ``control strategy''
SIPs such as the detailed attainment and maintenance plans required
under other provisions of the CAA, as amended in 1977 and again in
1990, such as section 175A and 182. The commenter suggests that these
provisions must apply to section 110 SIPs because in the preamble to
EPA's action ``restructuring and consolidating'' provisions in part 51,
EPA stated that the new attainment demonstration provisions in the 1977
Amendments to the CAA were ``beyond the scope'' of the rulemaking. It
is important to note, however, that EPA's action in 1986 was not to
establish new substantive planning requirements, but rather was meant
merely to consolidate and restructure provisions that had previously
been promulgated. EPA noted that it had already issued guidance
addressing the new ``Part D'' attainment planning obligations. Also, as
to maintenance regulations, EPA expressly stated that it was not making
any revisions other than to re-number those provisions. 51 FR at 40657.
    Although EPA was explicit that it was not establishing requirements
interpreting the provisions of new ``Part D'' of the CAA, it is clear
that the regulations being restructured and consolidated were intended
to address control strategy plans. In the preamble, EPA clearly stated
that 40 CFR 51.112 was replacing 40 CFR 51.13 (``Control strategy:
SOx and PM (portion)''), 51.14 (``Control strategy: CO, HC,
Ox and NO2 (portion)''), 51.80 (``Demonstration
of attainment: Pb (portion)''), and 51.82 (``Air quality data
(portion)''). Id. at 40660. Thus, the present-day 40 CFR 51.112
contains consolidated provisions that are focused on control strategy
SIPs, and the infrastructure SIP is not such a plan.
5. EPA Interpretations in Other Rulemakings
    Comment 6: The commenter also references two prior EPA rulemaking
actions where EPA disapproved or proposed to disapprove SIPs and
claimed they were actions in which EPA relied on section 110(a)(2)(A)
and 40 CFR 51.112 to reject infrastructure SIPs. The commenter first
points to a 2006 partial approval and partial disapproval of revisions
to Missouri's existing plan addressing the sulfur dioxide
(SO2) NAAQS. In that action, EPA cited section 110(a)(2)(A)
as a basis for disapproving a revision to the State plan on the basis
that the State failed to demonstrate the SIP was sufficient to ensure
maintenance of the SO2 NAAQS after revision of an emission
limit and cited to 40 CFR 51.112 as requiring that a plan demonstrates
the rules in a SIP are adequate to attain the NAAQS. Second, Sierra
Club cites a 2013 disapproval of a revision to the SO2 SIP
for Indiana, where the revision removed an emission limit that applied
to a specific emissions source at a facility in the State. In its
proposed disapproval, EPA relied on 40 CFR 51.112(a) in proposing to
reject the revision, stating that the State had not demonstrated that
the emission limit was ``redundant, unnecessary, or that its removal
would not result in or allow an increase in actual SO2
emissions.'' EPA further stated in that proposed disapproval that the
State had not demonstrated that removal of the limit would not ``affect
the validity of the emission rates used in the existing attainment
demonstration.'' Additionally, the commenter states EPA in its
September 2013 Infrastructure SIP Guidance purported to postpone
certain start-up, shutdown, and malfunction (SSM) requirements but did
not postpone other infrastructure SIP requirements, which the commenter
asserts indicates the CAA requires infrastructure SIPs to include
enforceable limits adequate to ensure attainment of NAAQS and to impose
limits without delay.
    Response 6: EPA does not agree that the two prior actions
referenced by the commenter establish how EPA reviews infrastructure
SIPs. It is clear from both the final Missouri rule and the proposed
and final Indiana rule that EPA was not reviewing initial
infrastructure SIP submissions under section 110 of the CAA, but rather
reviewing revisions that would relax the stringency of an already
approved SIP. EPA's partial approval and partial disapproval of
revisions to restrictions on emissions of sulfur compounds for the
Missouri SIP in 71 FR 12623 addressed a control strategy SIP and not an
infrastructure SIP. The Indiana action provides even less support for
the commenter's position. In that case, the State had an approved
SO2 attainment plan and was seeking to remove from the SIP
provisions relied on as part of the modeled attainment demonstration.
EPA proposed that the State had failed to demonstrate under section
110(l) of the CAA why the SIP revision would not result in increased
SO2 emissions and thus interfere with attainment of the
NAAQS. Nothing in that rulemaking addresses the necessary content of
the initial infrastructure SIP for a new or revised NAAQS. Rather, it
is simply applying the clear statutory requirement that a state must
demonstrate why a revision to an approved SIP will not interfere with
attainment of the NAAQS.
    Finally, EPA disagrees with the comment regarding the
Infrastructure SIP Guidance. The commenter correctly asserts that EPA
in its September 2013 Infrastructure SIP Guidance clearly stated that
EPA does not interpret section 110(a)(2) to require state air agencies
and the EPA to address potentially deficient pre-existing SSM SIP
provisions when acting on an infrastructure SIP particularly because
EPA has alternative tools in the CAA to address such deficiencies.
Infrastructure SIP Guidance at pgs. 19-20. However, this affirmative
statement regarding potential SSM deficiencies in a state's SIP cannot
be construed to mean or imply EPA cannot approve an infrastructure SIP
without a demonstration that the SIP contains adequate enforceable
limits to ensure attainment with a NAAQS. For all of the reasons
discussed previously, we do not interpret section 110(a)(2)(A) to
require that the state demonstrate attainment of the NAAQS. As
explained above, and similar to our position on SSM deficiencies, the
CAA establishes separate provisions that govern attainment SIPs for
areas. As discussed previously, EPA reviews infrastructure SIPs to
ensure a SIP has the appropriate structural requirements.
    Comment 7: The commenter states that EPA must evaluate Maryland's
provisions submitted in the 2008 ozone NAAQS infrastructure SIP to
address section 110(a)(2)(D)(i)(I) and determine whether they are
sufficient enough to meet requirements of section 110(a)(2)(D)(i)(I).
In light of the Supreme Court's decision in EME Homer City in April
2014, the commenter argues that the EPA should act quickly to address
pollution that may be contributing to another state's nonattainment or

interfering with another state's maintenance of the 2008 ozone NAAQS.
The commenter argues EPA must evaluate whether Maryland addresses the
section 110(a)(2)(D)(i)(I) requirements regarding emissions that would
contribute to exceedances of or interfere with the maintenance of the
2008 ozone NAAQS and cannot delay its review of Maryland's provisions
to address such requirements. The commenter states EPA must disapprove
the Maryland infrastructure SIP transport provision and adequately
address the impact of ozone emissions from Maryland on other states.
Because Maryland's transport SIP submittal relies on CSAPR and the HAA,
the commenter asserts EPA should determine Maryland has not adequately
addressed its cross-state impacts. The commenter claims CSAPR only
addresses the less stringent 1997 ozone NAAQS and claims that even
Maryland said additional reductions are needed for 2008 ozone NAAQS
beyond CSAPR. The commenter also claims Maryland's HAA was developed
under the ``outdated'' 1997 ozone NAAQS and claims Maryland's
reductions from the HAA do not demonstrate Maryland is not contributing
to nonattainment or interfering with maintenance of the NAAQS. The
commenter also claims Maryland cannot rely on voluntary control
measures to address transport of emissions. Therefore, the commenter
asserts EPA cannot approve the Maryland infrastructure SIP and Maryland
must revise its SIP to address section 110(a)(2)(D)(i)(I) for the 2008
ozone NAAQS.
    Response 7: As EPA has stated previously both in the NPR and this
final rulemaking, EPA is not taking any final action with respect to
the good neighbor provisions in section 110(a)(2)(D)(i)(I). In the NPR,
EPA did not propose to take any action with respect to Maryland's
obligations pursuant to section 110(a)(2)(D)(i)(I) and is not, in this
rulemaking action, taking any such action. Thus, the comments relating
to the substance and approvability of Maryland's good neighbor
provision in its 2008 ozone NAAQS infrastructure SIP submission are not
relevant to this present rulemaking action. As stated herein and in the
NPR, EPA will take later, separate action on Maryland's 2008 ozone
NAAQS infrastructure SIP submission to address section
110(a)(2)(D)(i)(I).
    EPA believes the statutory language in the CAA supports our ability
to approve Maryland's December 27, 2012 2008 ozone NAAQS infrastructure
SIP while taking later, separate action on the portion of the SIP
submittal which addresses Maryland's obligation to address section
110(a)(2)(D)(i)(I). Section 110(k)(3) of the CAA authorizes EPA to
approve a plan in full, disapprove it in full, or approve it in part
and disapprove it in part, depending on the extent to which such plan
meets the requirements of the CAA. This authority to approve the
states' SIP revisions in separable parts was included in the 1990
Amendments to the CAA to overrule a decision in the Court of Appeals
for the Ninth Circuit holding that EPA could not approve individual
measures in a plan submission without either approving or disapproving
the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N.
3385, 3408 (discussing the express overruling of Abramowitz v. EPA, 832
F.2d 1071 (9th Cir. 1987)).
    As such, EPA interprets its authority under section 110(k)(3), as
affording EPA the discretion to approve or conditionally approve
individual elements of Maryland's infrastructure submission for the
2008 8-hour ozone NAAQS, separate and apart from any action with
respect to the requirements of section 110(a)(2)(D)(i)(I) with respect
to that NAAQS. EPA views discrete infrastructure SIP requirements, such
as the requirements of 110(a)(2)(D)(i)(I), as severable from the other
infrastructure elements and interprets section 110(k)(3) as allowing it
to act on individual severable measures in a plan submission. The
commenter raises no compelling legal or environmental rationale for an
alternate interpretation. Nothing in the Supreme Court's April 2014
decision in EME Homer City alters our interpretation that we may act on
individual severable measures including the requirements of section
110(a)(2)(D)(i)(I) in a SIP submission. See EPA v. EME Homer City
Generation, L.P., 134 S. Ct. 1584 (2014) (affirming a state's
obligation to submit a SIP revision addressing section
110(a)(2)(D)(i)(I) independent of EPA's action finding significant
contribution or interference with maintenance).
    EPA's proposed approval of the Maryland December 27, 2012
infrastructure SIP submission for the 2008 ozone NAAQS for the portions
described in the NPR was therefore appropriate.
    Comment 8: The commenter indicates that Maryland is not meeting the
requirements of CAA section 110(a)(2)(J) and does not meet the
requirements of section 127 relating to public notification. The
commenter asserts section 127 mandates a SIP contain provisions to
effectively notify the public of NAAQS exceedances and provides that
the state must advise of health hazards of pollution. The commenter
contends Maryland's Environmental Article, section 2-103.2(b) ensures
air monitoring data is available online but does not provide public
notification of NAAQS exceedances. Additionally the commenter questions
whether the ozone forecasts provided by Maryland online provide
information about ozone NAAQS exceedances and says Maryland must revise
its infrastructure SIP to ensure compliance with section 110(a)(2)(J).
    Response 8: EPA disagrees with the commenter that the Maryland SIP
does not meet the requirement of section 110(a)(2)(J) for public
notification. In the TSD accompanying the NPR, EPA discussed
Environment Article, section 2-103.2(b) of the Annotated Code of
Maryland, which requires public access to all air monitoring data
online via the internet. By providing information to the public on the
internet for 8-hour ozone levels, the State of Maryland provides
adequate public notification of ozone levels and provides to the public
both in and outside the State of Maryland information that can be used
to examine ozone levels and determine when and where exceedances
occurred or might occur. The commenter does not explain why this
information is not adequate ``public notice'' of exceedances of the
NAAQS. In addition to providing access to the ozone monitor data on the
internet, the Maryland SIP contains approved procedures for permitting,
attainment planning, and emergency episodes which provide information
about the ozone air quality conditions and about the emission controls
that may be implemented to reduce ozone levels. Section 2-303(b) of the
Environment Article of the Annotated Code of Maryland requires that
public hearings be held before Maryland finalizes air quality
regulations. In the TSD, EPA also identified other regulatory and
statutory provisions in Maryland which address public notification and
hearings including COMAR 26.11.02 and 26.11.03 for permits and COMAR
<IP_ADDRESS> which adopts 40 CFR 58.50 for reporting air quality to the
public several times per day. In addition, COMAR <IP_ADDRESS> and
<IP_ADDRESS> provide for public notification when ozone levels may reach
or exceed levels considered injurious to human health. The remaining
provisions in COMAR 26.11.05 provide for responsive actions to address
such injurious accumulations of air pollution. Maryland provides
historical information on exceedances statewide for each calendar year
at

http://www.mde.state.md.us/programs/Air/AirQualityMonitoring/Pages/HistoricalData.aspx which contains links to a statewide listing of
recorded exceedances at specific locations including the Millington
monitor in Kent County. Maryland also provides air quality forecasts at
http://www.mde.state.md.us/programs/Air/AirQualityMonitoring/Pages/AQForecast.aspx which also includes information on actions the public
can take to reduce pollution and protect their health.
    As explained in the TSD accompanying the NPR and herein, Maryland's
ozone infrastructure SIP submission clearly demonstrates that Maryland
regularly notifies the public of instances or areas in which the 2008
ozone NAAQS was exceeded, advises the public of the health hazards
associated with such exceedances, and enhances public awareness of
measures that can prevent such exceedances and of ways in which the
public can participate in regulatory and other efforts to improve air
quality. Thus, EPA believes the Maryland statutory and regulatory
provisions discussed previously and in the TSD provide effective
methods to provide information and notification to the public when the
ozone standard may be or has been exceeded.

V. Final Action

    EPA is approving the following infrastructure elements of
Maryland's December 27, 2012 SIP revision for the 2008 ozone NAAQS:
Section 110(a)(2)(A), (B), (C), (D)(i)(II), D(ii), (E), (F), (G), (H),
(J), (K), (L), and (M) as a revision to the Maryland SIP. This
rulemaking action does not include Section 110(a)(2)(I) of the CAA
which pertains to the nonattainment requirements of Part D Title I of
the CAA. This rulemaking action also does not include any action on
Section 110(a)(2)(D)(i)(I). EPA will take later separate action on
Maryland's December 27, 2012 SIP submission addressing Section
110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS.

VI. 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 Order
12866 (58 FR 51735, October 4, 1993);
     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 December 15, 2014. 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, which satisfies certain infrastructure
requirements of section 110(a)(2) of the CAA for the 2008 ozone NAAQS
for the State of Maryland, 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, Ozone, Reporting and recordkeeping requirements.

    Dated: September 22, 2014.
William C. Early,
 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
the entry for Infrastructure Requirements for the 2008 Ozone NAAQS at
the end of the table to read as follows:

Sec.  52.1070  Identification of plan.

* * * * *
    (e)* * *

----------------------------------------------------------------------------------------------------------------
    Name of non-regulatory SIP          Applicable           State                                Additional
             revision                geographic area    submittal date   EPA approval date       explanation
----------------------------------------------------------------------------------------------------------------

                                                * * * * * * * * *
Infrastructure Requirements for    Statewide..........        12/27/12  10/16/14 [Insert     This action
 the 2008 Ozone NAAQS.                                                   Federal Register     addresses the
                                                                         citation].           following CAA
                                                                                elements:
                                                                                110(a)(2)(A), (B),
                                                                                (C), (D)(i)(II),
                                                                                D(ii), (E), (F),
                                                                                (G), (H), (J),
                                                                                (K), (L), and (M)
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[FR Doc. 2014-24256 Filed 10-15-14; 8:45 am]
BILLING CODE 6560-50-P