[Federal Register Volume 79, Number 227 (Tuesday, November 25, 2014)]
[Rules and Regulations]
[Pages 70095-70099]
[FR Doc No: 2014-27749]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2014-0690; FRL-9919-48-Region-3]

Approval and Promulgation of Air Quality Implementation Plans;
Maryland; Prevention of Significant Deterioration

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct
final action to approve revisions to the Maryland State Implementation
Plan (SIP). The revisions incorporate by

reference (IBR) the current requirements of the Federal Prevention of
Significant Deterioration (PSD) program into the Maryland SIP.
Additionally, the revisions will allow Maryland's PSD program to
automatically update with any revisions to the Federal regulations. EPA
is approving these revisions to Maryland's PSD program in accordance
with the requirements of the Clean Air Act (CAA).

DATES: This rule is effective on January 26, 2015 without further
notice, unless EPA receives adverse written comment by December 26,
2014. If EPA receives such comments, it will publish a timely
withdrawal of the direct final rule in the Federal Register and inform
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2014-0690 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
    B. Email<EMAIL_ADDRESS>    C. Mail: EPA-R03-OAR-2014-0690, Andrew Kreider, Acting Associate
Director, Office of Permits and Air Toxics, Mailcode 3AP10, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2014-0690. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., 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 in www.regulations.gov or
in hard copy 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: David Talley,<PHONE_NUMBER>, or by
email at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    On August 22, 2013, the Maryland Department of the Environment
(MDE) submitted a formal revision (#13-05) to the Maryland State
Implementation Plan (SIP). The SIP revision incorporates by reference
the most current Federal PSD regulations which are codified at 40 CFR
52.21, and will allow future revisions to the Federal PSD program to be
automatically incorporated into Maryland's SIP.
    Maryland has previously adopted a PSD program through an IBR of a
date-specific version of the Federal PSD program. The currently
approved Maryland SIP incorporates the Federal regulations as published
in the 2009 version of the Code of Federal Regulations, and ``as
amended by the `Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule' (Tailoring Rule; 75 FR 31514), and the
`Deferral for CO2 Emissions from Bioenergy and Other
Biogenic Sources under the Prevention of Significant Deterioration and
Title V Programs' (Biomass Deferral; 76 FR 43490).''
    EPA took final action to approve Maryland's IBR of the 2009 version
of 40 CFR 52.21 ``as amended'' by the Tailoring Rule on August 2, 2012
(77 FR 45949). Subsequently, MDE submitted a revision which
incorporated the provisions of the Biomass Deferral into the Maryland
SIP. On November 16, 2012, EPA took final action to approve that
revision (78 FR 13497). EPA's August 2, 2012 approval incorporated a
number of important required elements into Maryland's PSD program,
including those related to the 2008 ``Implementation of New Source
Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers
(PM2.5)'' (2008 NSR PM2.5 Rule; 73 FR 28321). For
PSD sources in Maryland, this required that PSD permits address direct
PM2.5 emissions as well as precursor emissions (including
sulfur dioxide (SO2) and oxides of nitrogen
(NOX)), established significant emission rates for
PM2.5 and precursor emissions, and established the
requirement to account for condensable particulate matter. On January
4, 2013, the U.S. Court of Appeals for the District of Columbia Circuit
(D.C. Circuit), in Natural Resources Defense Council (NRDC) v. EPA,\1\
issued a decision that remanded the EPA's rules implementing the 1997
PM2.5 NAAQS, including the 2008 NSR PM2.5 Rule.
The court's remand of the 2008 NSR PM2.5 Rule is relevant to
this final rulemaking. This rule promulgated NSR requirements for
implementation of PM2.5 in both nonattainment areas
(nonattainment NSR) and attainment/unclassifiable areas (PSD). The D.C.
Circuit found that EPA erred in implementing the PM2.5 NAAQS
pursuant to the general implementation provisions of subpart 1 of part
D of title I of the CAA, rather than pursuant to the additional
implementation provisions specific to particulate matter nonattainment
areas in subpart 4. The court ordered the EPA to ``repromulgate these
rules pursuant to Subpart 4 consistent with this opinion.'' Id. at 437.
However, as the requirements of subpart 4 only pertain to nonattainment
areas, it is EPA's position that the portions of the 2008 NSR
PM2.5 Rule that address requirements for PM2.5 in
attainment and unclassifiable areas are not affected by the D.C.
Circuit's opinion in NRDC v. EPA. Moreover, EPA does not anticipate the
need to revise any PSD requirements promulgated in the 2008 NSR
PM2.5 Rule in order to comply with the court's decision.
Accordingly, EPA's approval of Maryland's SIP as to the PSD
requirements promulgated by the 2008 NSR PM2.5 Rule in this
action does

not conflict with the D.C. Circuit's opinion.
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    \1\ See 706 F.3d 428 (D.C. Cir. 2013).
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    On October 20, 2010, EPA promulgated additional PSD regulations
relating to PM2.5: ``Prevention of Significant Deterioration
(PSD) for Particulate Matter Less than 2.5 Micrometers
(PM2.5)--Increments, Significant Impact Levels (SILs), and
Significant Monitoring Concentrations (SMC)'' (2010 PSD
PM2.5 Rule; 73 FR 64864). Because Maryland's currently
approved SIP incorporates the 2009 version of the CFR, these provisions
are not currently in the Maryland SIP. On January 22, 2013, the D.C.
Circuit, in Sierra Club v. EPA,\2\ issued a judgment that, inter alia,
vacated and remanded the SIL provisions at 40 CFR 52.21(k)(2).
Additionally, the D.C. Circuit vacated the SMC provisions at section
52.21(i)(5)(i)(c). In response to the D.C. Circuit's decision, EPA took
final action on December 9, 2013 to remove the SIL provisions from the
Federal PSD regulations and to revise the SMC for PM2.5 to
zero (78 FR 73698). Therefore, the provisions with which the court took
issue are not in effect in Maryland and are not being approved into the
Maryland SIP as part of this action.
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    \2\ See 705 F.3d 458, 469.
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    The 2010 PSD PM2.5 Rule also established increments for
PM2.5 pursuant to the legal authority contained in section
166(a) of the CAA for pollutants for which NAAQS are promulgated after
1977. An increment is the maximum allowable level of ambient pollutant
concentration increase that is allowed to occur above the applicable
baseline concentration in a particular area. As such, an increment
defines ``significant deterioration.'' The PM2.5 increment
provisions at 40 CFR 52.21(c) were not affected by the D.C. Circuit's
decision on the 2010 PSD PM2.5 Rule, and are therefore being
approved into the Maryland SIP with this final approval action.
    Additionally, EPA notes that on June 23, 2014, the United States
Supreme Court, in Utility Air Regulatory Group v. Environmental
Protection Agency,\3\ issued a decision addressing the application of
PSD permitting requirements to greenhouse gas (GHG) emissions. 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 (or
modification thereof) 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
before the D.C. Circuit 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 CFRs
51.166(b)(48)(v) and 52.21(b)(49)(v)).
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    \3\ 134 S.Ct. 2427.
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    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. In states that allow future revisions to the
Federal PSD program to be automatically incorporated into the SIP as
Maryland has done in this case, this will be accomplished as soon as
EPA revises the federal PSD rules. The timing and content of subsequent
EPA actions with respect to the EPA regulations is expected to be
informed by additional legal processes before the D.C. Circuit. EPA is
not expecting states to have revised their existing PSD program
regulations at this juncture before the D.C. Circuit has addressed
these issues and before EPA has revised its regulations at 40 CFRs
51.166 and 52.21. However, EPA is evaluating PSD program submissions to
assure that the state's program correctly addresses GHGs consistent
with the Supreme Court's decision.
    Maryland's existing approved SIP contains the greenhouse gas
permitting requirements reflected in 40 CFR 52.21 after EPA issued the
Tailoring Rule. As a result, the PSD permitting program in Maryland
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 when sources emit or increase greenhouse gases in the amount of
75,000 tons per year (measured as carbon dioxide (CO2)
equivalent CO2e). Although the approved Maryland PSD
permitting program may also currently contain provisions that are no
longer necessary in light of the Supreme Court decision, this does not
prevent EPA from approving the submission addressed in this rule.
Maryland's 2013 SIP submission does not add any greenhouse gas
permitting requirements that are inconsistent with the Supreme Court
decision. While this submission incorporates all of 40 CFR 52.21 for
completeness, the submission reincorporates PSD permitting requirements
for greenhouse gases that are mostly already in the Maryland SIP.
    However, this revision does add to the Maryland SIP the elements of
EPA's 2012 rule implementing Step 3 of the phase in of PSD permitting
requirements for greenhouse gases described in the Tailoring Rule. 77
FR 41051 (July 12, 2012). This rule became effective on August 13,
2012. Specifically, the incorporation of the Step 3 rule provisions
will allow GHG-emitting sources to obtain plantwide applicability
limits (PALs) for their GHG emissions on a CO2e basis. The
GHG PAL provisions, as currently written, include some provisions that
may no longer be appropriate in light of the Supreme Court decision.
Since the Supreme Court has determined that sources and modifications
may not be defined as ``major'' solely on the basis of the level of
greenhouse gases emitted or increased, PALs for greenhouse gases may no
longer have value in some situations where a source might have
triggered PSD based on greenhouse gas emissions alone. However, PALs
for GHGs may still have a role to play in determining whether a
modification that triggers PSD for a pollutant other than greenhouse
gases should also be subject to BACT for greenhouse gases. These
provisions, like the other GHG provisions discussed previously, will
likely be revised pending further legal action. However, this SIP
revision does not add new requirements for sources or modifications
that only emit or increase greenhouse gases above the major source
threshold or the 75,000 tpy greenhouse gas level in 40 CFR
52.21(b)(49)(iv). Rather, the PAL's provisions provide increased
flexibility to sources that wish to address their GHG emissions in a
PAL. Since this flexibility may still be valuable to sources in at
least one context described above, EPA believes that it is appropriate
to approve these provisions into the Maryland SIP at this juncture.
    While the automatic IBR of 40 CFR 52.21 being approved into
Maryland's SIP through this action will incorporate some regulations
that will be revised in subsequent EPA actions to address the Supreme
Court decision, approving the automatic IBR into Maryland's SIP at this
time will ensure that Maryland's

PSD requirements will remain consistent with the Federal regulations at
the time of any subsequent revisions EPA makes to the Federal PSD
program. In a related matter, on July 12, 2013, the D.C. Circuit, in
Center for Biological Diversity v. EPA \4\ vacated the provisions of
the Biomass Deferral, which had delayed (for three years) the
applicability of PSD and title V requirements to biogenic
CO2 emissions. While the ultimate disposition of the Federal
regulations implementing the Biomass Deferral has not yet been
determined, the deferral expired on July 21, 2014 anyway, and could not
presently be used even absent the vacatur. As previously discussed, any
future revisions to the Federal regulations will automatically be
incorporated into Maryland's SIP. Therefore, while this approval action
includes the vacated portions of 40 CFR 52.21(b)(49)(ii)(a), EPA's
approval does not conflict with the D.C. Circuit's decision.
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    \4\ See 722 F.3d 401.
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II. Summary of SIP Revision

    MDE's August 22, 2013 SIP revision request includes amendments to
the following provisions of the Code of Maryland Regulations (COMAR):
Regulation .01 under 26.11.01--General Administrative Provisions, and
Regulation .14 under COMAR 26.11.06--General Emission Standards,
Prohibitions, and Restrictions. The revisions remove the date-specific
IBR of section 52.21, replacing it with an IBR of 40 CFR 52.21 ``as
amended.'' As previously discussed, these revisions incorporate the
current Federal PSD requirements, and will automatically incorporate
any future changes to the Federal regulations into the Maryland SIP.
EPA is approving the SIP revision in accordance with the CAA and the
requirements for PSD permitting programs.

III. Final Action

    EPA is approving MDE's August 22, 2013 submittal as a revision to
the Maryland SIP. EPA is publishing this rule without prior proposal
because EPA views this as a noncontroversial amendment and anticipates
no adverse comment. However, in the ``Proposed Rules'' section of
today's Federal Register, EPA is publishing a separate document that
will serve as the proposal to approve the SIP revision if adverse
comments are filed. This rule will be effective on January 26, 2015
without further notice unless EPA receives adverse comment by December
26, 2014. If EPA receives adverse comment, EPA will publish a timely
withdrawal in the Federal Register informing the public that the rule
will not take effect. EPA will address all public comments in a
subsequent final rule based on the proposed rule. EPA will not
institute a second comment period on this action. Any parties
interested in commenting must do so at this time.

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 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 January 26, 2015. 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. Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the proposed rules
section of today's Federal Register, rather than file an immediate
petition for judicial review of this direct final rule, so that EPA can
withdraw this direct final rule and address the comment in the proposed
rulemaking action.
    This action pertaining to Maryland's PSD program 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, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.

    Dated: November 5, 2014.
W.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 (c) is amended by revising
the entry/entries for COMAR <IP_ADDRESS> and <IP_ADDRESS>. The revised
text reads as follows:

Sec.  52.1070  Identification of plan.

* * * * *
    (c) * * *

                 EPA-Approved Regulations, Technical Memoranda, and Statutes in the Maryland SIP
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                                                       State
Code of Maryland administrative    Title/subject     effective   EPA approval date     Additional explanation/
  regulations (COMAR) citation                          date                         citation at 40 CFR 52.1100
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                                   26.11.01 General Administrative Provisions
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<IP_ADDRESS>....................  Definitions......       7/8/13  11/25/14 [Insert   Revised .01B(37).
                                                                  Federal Register
                                                                  citation].

                                                  * * * * * * *
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                       26.11.06 General Emission Standards, Prohibitions, and Restrictions
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                                                  * * * * * * *
<IP_ADDRESS>....................  Control of PSD          7/8/13  11/25/14 [Insert   Revised .14B(1).
                                  Sources.                        Federal Register
                                                                  citation].

                                                  * * * * * * *
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[FR Doc. 2014-27749 Filed 11-24-14; 8:45 am]
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