[Federal Register Volume 85, Number 78 (Wednesday, April 22, 2020)]
[Proposed Rules]
[Pages 22381-22384]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08240]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2018-0042; FRL-10007-90-Region 3]


Air Plan Disapproval; Maryland; Interstate Transport Requirements 
for the 2010 1-Hour Sulfur Dioxide National Ambient Air Quality 
Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
disapprove part of a Maryland state implementation plan (SIP) 
submission as inadequate to meet certain Clean Air Act (CAA) interstate 
transport requirements for the 2010 primary sulfur dioxide National 
Ambient Air Quality Standard (SO2 NAAQS). Specifically, EPA 
proposes to find that the Maryland SIP submission does not contain 
adequate provisions prohibiting emissions from Maryland sources which 
will contribute significantly to nonattainment or interfere with 
maintenance of the 2010 SO2 NAAQS in any other state.

DATES: Written comments must be received on or before May 22, 2020.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2018-0042 at https://www.regulations.gov, or via email to 
spielberger.susan@epa.gov. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be confidential business information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Megan Goold, Planning & Implementation 
Branch (3AD30), Air & Radiation Division, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. 
The telephone number is (215) 814-2027. Ms. Goold can also be reached 
via electronic mail at goold.megan@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    On June 22, 2010 (75 FR 35520), EPA promulgated a revised primary 
NAAQS for SO2 at a level of 75 parts per billion (ppb), 
based on a 3-year average of the annual 99th percentile of 1-hour daily 
maximum concentrations. Pursuant to section 110(a)(1), states must 
submit ``within 3 years (or such shorter period as the Administrator 
may prescribe) after the promulgation of a national primary ambient air 
quality standard (or any revision thereof),'' a plan that provides for 
the ``implementation, maintenance, and enforcement'' of such NAAQS. 
This SIP submission is generally referred to as an ``infrastructure 
SIP.'' The statute directly imposes on states the duty to make these 
SIP submissions, and the requirement to make the submissions is not 
conditioned upon EPA's taking any action other than promulgating a new 
or revised NAAQS. Section 110(a)(2) includes a list of specific 
elements that ``[e]ach such plan'' submission must address to meet the 
infrastructure requirements. Among the section 110(a)(2) requirements 
are the requirements under section 110(a)(2)(D)(i)(I) for states to 
include adequate provisions in their SIPs that prohibit emissions 
within the state which will contribute significantly to nonattainment 
in, or interfere with maintenance by, any other state with respect to a 
NAAQS. This infrastructure element related to interstate transport of 
SO2 is the subject of this proposed rulemaking action.

II. Relevant Factors To Evaluate 2010 SO2 Interstate 
Transport SIPs

    Although SO2 is emitted from a similar universe of point 
and nonpoint sources, interstate transport of SO2 is unlike 
the transport of fine particulate matter (PM2.5) or ozone, 
in that SO2 is not a regional pollutant and does not 
commonly contribute to widespread nonattainment over a large (and often 
multi-state) area. The transport of SO2 is more analogous to 
the transport of lead (Pb) because its physical properties result in 
localized pollutant impacts very near the emissions source. However, 
ambient concentrations of SO2 do not decrease as quickly 
with distance from the source as Pb because of the physical properties 
and typical release heights of SO2. Emissions of 
SO2 travel farther and have wider ranging impacts than 
emissions of Pb but do not travel far enough to be treated in a manner 
similar to ozone or PM2.5. The approaches that the EPA has 
adopted for ozone or PM2.5 transport are too regionally 
focused and the approach for Pb transport is too tightly circumscribed 
to the source to serve as a model for SO2 transport. 
SO2 transport is therefore a unique case and requires a 
different approach.
    In this proposed rulemaking, as in prior SO2 transport 
analyses, EPA focuses on a 50 kilometer-wide zone around large 
stationary sources of SO2 because the physical properties of 
SO2 result in relatively localized pollutant impacts near an 
emissions source that diminish with distance. Given the physical 
properties of SO2, EPA selected the ``urban scale''--a 
spatial scale with dimensions from 4 to 50 kilometers (km) from point 
sources--given the usefulness of that range in assessing trends in both 
area-wide air quality and the effectiveness of large-scale pollution 
control strategies at such point sources.\1\ As such, EPA utilized an 
assessment up to 50 km from point sources in order to assess trends in 
area-wide air quality that might impact downwind states.
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    \1\ For the definition of spatial scales for SO2, see 
40 CFR part 58, appendix D, section 4.4 (``Sulfur Dioxide 
(SO2) Design Criteria''). For further discussion on how 
EPA is applying these definitions with respect to interstate 
transport of SO2, see EPA's proposal on Connecticut's 
SO2 transport SIP. 82 FR 21351, 21352, 21354 (May 8, 
2017).
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III. Summary of State SIP Revision

    On August 17, 2016, Maryland, through the Maryland Department of 
the Environment (MDE), submitted a SIP revision, consistent with EPA 
guidance, to satisfy most of the infrastructure requirements of CAA 
section 110(a)(2) for the 2010 SO2 NAAQS.\2\
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    \2\ Consistent with ``Guidance on Infrastructure SIP Elements 
under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' Memorandum 
from Stephen D. Page, September 13, 2013. The Maryland SIP 
submission addressed all of the infrastructure requirements of 
section 110(a)(2) except for requirements concerning nonattainment 
new source review permit programs under 110(a)(2)(C) and the 
nonattainment planning requirements under part D, title I of the CAA 
found at 110(a)(2)(I). These elements are not subject to the same 
three-year deadline for adoption as the other 110(a)(2) 
requirements.
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    On May 8, 2019 (84 FR 20070), EPA proposed approval of Maryland's 
infrastructure SIP submittal for the 2010

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1-hour SO2 NAAQS for all of the submitted applicable 
elements of section 110(a)(2) with the exception of 110(a)(2)(D)(i)(I), 
which are the interstate transport elements. In that action, EPA stated 
that it would act on the interstate transport elements in a future 
action. This proposed rulemaking action addresses those interstate 
transport elements.
    In Maryland's August 17, 2016 SIP submittal, MDE discusses various 
State and Federal measures which it asserts prohibit Maryland sources 
from emitting SO2 at levels which would contribute 
significantly to nonattainment or interfere with maintenance of the 
SO2 NAAQS in another state, including: (1) The Healthy Air 
Act (HAA), which was enacted in 2006, as well as its implementing 
regulations at Code of Maryland Regulations (COMAR) 26.11.27 (adopted 
into the SIP in 2017 (73 FR 51599)), which require reductions in total 
emissions of SO2 from electric generating units (EGUs); (2) 
a July 11, 2013 consent decree between Holcim, Incorporated and the 
U.S. government which requires Holcim to replace units at its 
Hagerstown, Maryland facility and install controls with significant 
SO2 reductions; and (3) the State's Regional Haze SIP, 
approved by EPA on July 6, 2012 (77 FR 39938), which reduces 
SO2 from Maryland sources subject to Best Available Retrofit 
Technology (BART) requirements.
    Maryland also considered four existing SO2 nonattainment 
areas in Pennsylvania, West Virginia, and Ohio, as well as one area in 
Ohio that was not yet characterized at the time of Maryland's August 
17, 2016 submittal but that Maryland considered a potential 
nonattainment area. Maryland determined that the distance from Maryland 
state borders to the existing nonattainment areas or to the potential 
nonattainment area was beyond the range of concern for transported 
SO2 emissions.\3\ Likewise, Maryland considered a potential 
nonattainment area in the State that had not yet been characterized and 
determined that the distance (39 miles or approximately 63 km) from the 
large SO2 sources in that uncharacterized area to a 
neighboring state was also beyond the range of concern for 
SO2 transport.
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    \3\ The distance from Maryland's nearest border to the Allegheny 
County, Pennsylvania SO2 nonattainment area is 49 miles 
(approximately 79 km), to the Indiana, Pennsylvania SO2 
nonattainment area is 59 miles (approximately 95 km), to the 
Marshall, West Virginia SO2 nonattainment area is 69 
miles (approximately 111 km) and to the Weirton-Steubenville, Ohio-
West Virginia SO2 nonattainment area is 78 miles 
(approximately 126 km). The distance from Maryland's state border to 
Ohio's potential nonattainment area is 142 miles (approximately 229 
km).
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IV. EPA's Analysis of Maryland's Submittal

    The EPA generally agrees that the Federally enforceable measures 
described in Maryland's August 17, 2016 SIP submittal have contributed 
to reductions of SO2 emissions at specific sources 
throughout the State. However, the submittal does not address 
SO2 emissions from the Luke Paper Mill (Luke) that current 
ambient monitoring data demonstrate as contributing significantly to 
nonattainment of the 2010 SO2 NAAQS in West Virginia.
    On August 21, 2015 (80 FR 51052), EPA promulgated air quality 
characterization requirements for the 2010 1-hour SO2 NAAQS 
in the Data Requirements Rule (DRR). The DRR requires state and local 
air agencies to characterize air quality, through air dispersion 
modeling or monitoring, in areas associated with sources that emitted 
2,000 tons per year (tpy) or more of SO2, or that have 
otherwise been listed under the DRR by EPA or state air agencies. EPA 
expected that the information generated by implementation of the DRR 
would help inform designations for the 2010 1-hour SO2 
NAAQS, including designations of the remaining undesignated areas that 
must be completed by December 31, 2020 (``round 4''), as well as for 
other CAA programs. New source-oriented monitors were required to be 
operational by January 1, 2017.
    Luke, in Allegany County, Maryland, is a source of SO2 
emissions located on the West Virginia state border. Luke emitted 
greater than 2,000 tons of SO2 in 2014 and was therefore 
required to be characterized pursuant to the DRR. Maryland elected to 
install new source-oriented monitors to capture the maximum impacts 
from Luke.\4\ Two monitors were installed in Allegany County, Maryland, 
and one monitor was installed in Mineral County, West Virginia. These 
three monitors were installed in accordance with EPA's Source-Oriented 
Monitoring Technical Assistance Document \5\ as described in Maryland's 
Annual Monitoring Network Plan (AMNP) for Calendar Year 2017 and the 
accompanying Addendum, which were both approved by EPA on November 10, 
2016.\6\
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    \4\ Maryland's 2016 Annual Monitoring Network Plan details the 
modeling used to site the three new monitors around the Luke Paper 
facility. Through that plan, EPA approved the new monitor locations.
    \5\ See EPA's SO2 NAAQS Designations Source-Oriented 
Monitoring Technical Assistance Document (TAD), February 2016, at 
https://www3.epa.gov/airquality/so2implementation/SO2MonitoringTAD.pdf.
    \6\ As required by 40 CFR 58.10, Maryland submits an AMNP 
annually to EPA that details any modifications to the monitoring 
network. The AMNPs for calendar years 2017-2019 are provided in the 
docket for this rulemaking. EPA's approval of each AMNP is included 
in the subsequent year's AMNP in the docket.
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    The three source-oriented monitors around the Luke facility began 
operating after this SIP was submitted in 2016. The two Maryland 
monitors began operating on January 11, 2017 and the West Virginia 
monitor began operating on February 24, 2017.
    Table 1 shows the certified 99th percentile of daily maximum 1-hour 
concentrations at the three new monitors for 2017 and 2018, as well as 
the preliminary 99th percentile concentration for 2019.\7\ The 2019 
data is preliminary because it has not yet been quality assured and 
certified. Maryland is required to certify the 2019 data for all three 
monitors by May 1, 2020.
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    \7\ To certify monitoring data, state or local air agencies 
upload their data to the EPA Air Quality System (AQS) for the year, 
review their data, correct it as needed, and ``certify'' their data 
in the system.
    \8\ Data source: EPA AQS, https://www.epa.gov/aqs.

                         Table 1--Monitored SO2 Concentrations, in ppb, Around Luke \8\
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                                                                                                    Preliminary
                                                     2017 99th       2018 99th      Preliminary       2017-19
          County, state             Monitor ID      percentile      percentile       2019 99th        average
                                                                                    percentile    (design value)
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Mineral, WV.....................     54-057-8883           186.8           203.3           134.9             175
Allegany, MD....................     24-001-8881            88.8           105.7            71.7              89
Allegany, MD....................     24-001-8882           152.3           172.5             144             156
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    A monitoring site in an area is determined to be meeting the 2010 
primary 1-hour SO2 NAAQS when the 99th percentile of the 
daily maximum 1-hour average concentrations, averaged over three years, 
does not exceed 75 ppb (40 CFR 50.17(b)). Two years of certified data 
shows the 2017 and 2018 99th percentile concentrations at the Mineral 
County, West Virginia monitor as 186.8 ppb and 203.3 ppb, respectively. 
The preliminary 2019 99th percentile 1-hour maximum concentration and 
the projected design value using the preliminary 2019 99th percentile 
1-hour maximum concentration are also shown in the table. The 
preliminary 2017-2019 design value at the Mineral County, West Virginia 
monitor is 175 ppb, using certified 2017-2018 data and preliminary 2019 
data. This monitor would not show levels meeting the standard 
regardless of the certified 99th percentile value for 2019 because even 
if the 99th percentile value for 2019 was zero, the 3-year design value 
would still violate the NAAQS ((186.8 ppb + 203.3 ppb + 0 ppb)/3 = 
130.03 ppb). This means it is mathematically impossible for this 
monitor to show attainment with the 2010 SO2 NAAQS.
    Luke is the only source \9\ that emits greater than 100 tpy of 
SO2 in the area near the Mineral County, West Virginia 
monitor.\10\ Based on the information contained in this notice, EPA 
proposes to conclude that Luke is impacting a violation of the NAAQS in 
the neighboring state of West Virginia. Therefore, EPA proposes that 
Luke significantly contributes to projected nonattainment in West 
Virginia. EPA is aware that Luke has ceased operations as of June 2019, 
however, as of the date of this action, Luke has not surrendered its 
permit(s) and there are no Federally enforceable measures in Maryland's 
SIP to prevent Luke from restarting operations and emitting 
SO2 at levels that contribute significantly to nonattainment 
or interfere with the maintenance of the 2010 SO2 NAAQS in 
West Virginia.
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    \9\ While there are other SO2 emissions sources near 
the primary Luke facility and its associated source-oriented 
monitors, these smaller sources are either also owned by Luke, have 
low SO2 emissions compared to the primary Luke facility, 
or are located a far enough distance away that they are likely not 
significant contributors to the violating monitors given the nature 
of SO2 dispersion described in section II.
    \10\ There is a SO2 source about 35 km away in 
neighboring Grant County, West Virginia, that was required to be 
characterized pursuant the DRR. In Round 3 of SO2 
designations, EPA designated the area around Dominion Resources, Mt. 
Storm Power Station as Attainment/Unclassifiable based on modeling 
performed by the State of West Virginia. This modeling projected the 
peak impacts from the Mt. Storm plant to be south of the facility, 
away from the area around the Luke facility. See ``Technical Support 
Document: Chapter 43 Intended Round 3 Area Designations for the 2010 
1-Hour SO2 Primary National Ambient Air Quality Standard 
for West Virginia'' at https://www.epa.gov/sites/production/files/2017-08/documents/43_wv_so2_rd3-final.pdf. See also ``Technical 
Support Document: Chapter 43 Final Round 3 Area Designations for the 
2010 1-Hour SO2 Primary National Ambient Air Quality 
Standard for West Virginia'' at https://www.epa.gov/sites/production/files/2017-12/documents/43-wv-so2-rd3-final.pdf.
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V. Proposed Action

    EPA is proposing to determine that the portion of the August 17, 
2016 Maryland SO2 infrastructure SIP submittal addressing 
CAA section 110(a)(2)(D)(i)(I) (the interstate transport of pollution) 
is not approvable because it does not include measures addressing the 
SO2 emissions from the Luke Paper Mill in Maryland that, 
based on the available information described herein, EPA believes will 
contribute significantly to the projected nonattainment in West 
Virginia or will interfere with maintenance of the 2010 SO2 
NAAQS.

VI. Statutory and Executive Order Reviews

Executive Orders 12866 and 13563: Regulatory Planning and Review

    Under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 
13563 (76 FR 3821, January 21, 2011), this action is not a 
``significant regulatory action'' and, therefore, is not subject to 
review by the Office of Management and Budget.

Executive Order 13771: Reducing Regulations and Controlling Regulatory 
Costs

    This action is not an Executive Order 13771 regulatory action 
because this action is not significant under Executive Order 12866.

Paperwork Reduction Act

    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

Regulatory Flexibility Act

    This action merely proposes to disapprove state requirements as not 
meeting Federal requirements and imposes no additional requirements 
beyond those imposed by state law. Accordingly, the Administrator 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.).

Unfunded Mandates Reform Act

    Because this rule proposes to disapprove pre-existing requirements 
under state law and does not impose any additional enforceable duty 
beyond that required by state law, it 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).

Executive Order 13132: Federalism

    This action also does not have Federalism implications because it 
does not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999). This action merely proposes to disapprove a state 
requirement and does not alter the relationship or the distribution of 
power and responsibilities established in the CAA.

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 13045: Protection of Children From Environmental Health 
and Safety Risks

    This rule also is not subject to Executive Order 13045 ``Protection 
of Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it proposes to disapprove a state rule.

Executive Order 13211: Actions That Significantly Affect Energy Supply, 
Distribution, or Use

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant energy action,'' this action 
is also not subject to Executive Order 13211. (66 FR 28355, May 22, 
2001).

National Technology Transfer Advancement Act

    In reviewing state submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of

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the CAA. In this context, in the absence of a prior existing 
requirement for the state to use voluntary consensus standards (VCS), 
EPA has no authority to disapprove a state submission for failure to 
use VCS. It would thus be inconsistent with applicable law for EPA, 
when it reviews a state submission, to use VCS in place of a state 
submission that otherwise satisfies the provisions of the CAA. Thus, 
the requirements of section 12(d) of the National Technology Transfer 
and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

Executive Order 12898: Federal Actions To Address Environmental Justice 
in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this action. In reviewing SIP submissions, EPA's role is to 
approve or disapprove state choices, based on the criteria of the CAA. 
Accordingly, this action merely disapproves certain state requirements 
for inclusion into the SIP under section 110 of the CAA and will not 
in-and-of itself create any new requirements. Accordingly, it 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Sulfur oxides.

    Dated: April 13, 2020.
Cosmo Servidio,
Regional Administrator, Region III.
[FR Doc. 2020-08240 Filed 4-21-20; 8:45 am]
 BILLING CODE 6560-50-P


