81 FR 78048 - Approval and Promulgation of Air Quality Implementation Plans; Maryland; Revisions and Amendments to Regulations for Continuous Opacity Monitoring, Continuous Emissions Monitoring, and Quality Assurance Requirements for Continuous Opacity Monitors
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 215 (November 7, 2016)
Federal Register Volume 81, Issue 215 (November 7, 2016)
| Page Range | 78048-78052 | |
| FR Document | 2016-26866 |
[Federal Register Volume 81, Number 215 (Monday, November 7, 2016)] [Rules and Regulations] [Pages 78048-78052] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-26866] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2016-0042; FRL-9954-40-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Maryland; Revisions and Amendments to Regulations for Continuous Opacity Monitoring, Continuous Emissions Monitoring, and Quality Assurance Requirements for Continuous Opacity Monitors AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is approving a state implementation plan (SIP) revision submitted by the State of Maryland. The revision pertains to changes and amendments to Maryland regulations for continuous opacity monitoring (COM or COMs) and continuous emissions monitoring (CEM or CEMs) and to an amendment adding requirements for Quality Assurance and Quality Control (QA/QC) as they pertain to COMs. EPA is approving these revisions to the COMs and CEMs requirements in accordance with the requirements of the Clean Air Act (CAA). DATES: This final rule is effective on December 7, 2016. [[Page 78049]] ADDRESSES: EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2016-0042. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available through http://www.regulations.gov, or please contact the person identified in the ``For Further Information Contact'' section for additional availability information. FOR FURTHER INFORMATION CONTACT: Marilyn Powers, (215) 814-2308, or by email at [email protected]. SUPPLEMENTARY INFORMATION: I. Background On June 17, 2016 (81 FR 39605), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland. In the NPR, EPA proposed approval of revisions and amendments to COMAR 26.11.01 General Administrative Requirements related to requirements for COMs and CEMs and the addition of new COMAR 26.01.31 Quality Assurance Requirements for Continuous Opacity Monitors (COMs). The formal SIP revision (#15- 05) was submitted by Maryland through the Maryland Department of the Environment (MDE) on November 24, 2015. On February 26, 2016, MDE provided a supplemental letter indicating MDE was excluding portions of COMAR 26.11.01.10 submitted in the November 24, 2015 SIP submittal from EPA's review and consideration as a SIP revision. The February 26, 2016 letter from MDE is available in the docket for this rulemaking and is available online at http://www.regulations.gov.\1\ --------------------------------------------------------------------------- \1\ Specifically, in the February 26, 2016 letter from MDE to EPA, MDE withdrew from EPA's review and consideration the text in COMAR 26.11.01.10.A(4), in COMAR 26.11 .01.10.B(4), in COMAR 26.11.01.10D(2)(c), and in COMAR 26.11.01.10.F which had initially been included in the November 25, 2015 SIP submittal. MDE excluded provisions in COMAR 26.11.01.10 that refer to sections or subsections of COMAR 26.11.09 that are not yet in the State's SIP. MDE plans to submit the COMAR 26.11.09 revisions along with these related provisions for approval into the SIP at a later date. --------------------------------------------------------------------------- EPA had previously approved Maryland regulation COMAR 26.11.01.10 Continuous Emissions Monitoring (CEM) Requirements into the Maryland SIP on February 28, 1996. 61 FR 7418. COMAR 26.11.01.10 required large fuel-burning equipment burning coal and residual oil to install COMs and demonstrate compliance using COM data. The regulation established monitoring requirements, CEM installation requirements, CEM installation and certification schedules, quality assurance procedures for opacity monitors, and record keeping and reporting requirements. The regulation had previously incorporated by reference Maryland's Technical Memorandum 90-01 (TM 90), and required compliance determinations for the State's visible emissions limits and QA/QC for COMs in accordance with the procedures therein. The terms CEMs and COMs were used interchangeably in COMAR 26.11.01.10; therefore, MDE determined it was necessary to establish separate requirements for each. The November 24, 2015 SIP submittal, as clarified and amended on February 26, 2016 by MDE, includes revisions to COMs and CEMs definitions in COMAR 26.11.01.01, administrative changes to reporting and recordkeeping requirements in COMAR 26.11.01.05, a revised COMAR 26.11.01.10 for COMs, a new COMAR 26.11.01.11 for CEMs, and new COMAR 26.11.31 for QA/QC procedures related to COMs. The November 24, 2015 submittal, as amended by MDE's February 26, 2016 letter, removes the requirement to use TM 90 for enforcement actions and for QA/QC requirements on applicable fuel-burning equipment and removes references to TM 90. II. Summary of SIP Revision The SIP revision is comprised of four state actions pertaining to adjusted requirements for COMs and CEMs in COMAR 26.11.01.01, COMAR 26.11.01.05 and COMAR 26.11.01.10, new CEMs provisions in COMAR 26.11.01.11, and new QA/QC requirements in COMAR 26.11.31. These four actions are a series of regulatory actions that result in a recodification of some existing requirements for COMs and CEMs, establishment of separate regulations and requirements for COMs and CEMs, removal of applicability of TM 90 for certain fuel-burning equipment and removal of references to TM 90, and codification of the QA/QC requirements for COMs that were formerly incorporated by reference in TM 90 into a new COMAR 26.11.31. Other specific requirements of the revised and amended COMAR regulations, and the rationale for EPA's approval action finding the regulations in accordance with section 110 of the CAA are explained in the NPR and in EPA's Technical Support Document (TSD) dated April 5, 2016, and will not be restated here. The NPR and TSD can be found in the docket for this rulemaking action available online at http://www.regulations.gov. III. Public Comments and EPA Responses EPA received one set of comments on the proposal from the Environmental Integrity Project and the Chesapeake Climate Action Network (collectively referred to herein as ``Commenter''). This set of these comments is provided in the docket for today's final rulemaking action. Comment 1: The Commenter stated that it thought the SIP revision would improve the Maryland SIP because it separates the requirements for COMs from the requirements for CEMs. However, because of its concern regarding some of Maryland's permitting and enforcement actions on opacity and particulate matter (PM) issues, the Commenter submitted comments ``to explain our understanding of the effect of the SIP revision that EPA is proposing to approve.'' The Commenter expressed concern with allowing ``ineffective technical methods'' in compliance demonstrations for opacity limits. The Commenter stated that a COM is an effective method of measuring compliance with Maryland's SIP opacity limits and reserved judgment on whether it is ever appropriate to substitute another technology for COMs to demonstrate compliance with opacity limits. The Commenter stated that if a technology is to be substituted for COMs, it should include PM CEMS paired with an approved method that accounts for the condensable portion of PM. The Commenter stated that, for various reasons, EPA Reference Method 9, by itself, is not a sufficient substitute for COMs due to infrequency and weather condition issues. The Commenter acknowledged that the proposed action to approve revisions to COMAR 26.11.01.10, 26.11.01.11 and 26.11.01.01 for the Maryland SIP does not ``allow Method 9 observations as a substitute for COM in compliance demonstrations for opacity.'' The Commenter noted that COMAR 26.11.01.10(A)(4), which allows fuel-burning sources to discontinue use of COMs under certain circumstances is not part of the November 24, 2015 SIP revision, as amended February 26, 2016, which EPA proposed to approve. Finally, the Commenter stated that no part of COMAR 26.11.09.05 [which contains Maryland's opacity limitation] was submitted with the November 24, 2015 SIP submittal, and thus no [[Page 78050]] provision in the November 24, 2015 SIP submission allows discontinuation of COM at fuel burning sources. Response 1: EPA thanks the Commenter for its statements. EPA confirms Commenter's statement that the NPR did not propose any action on COMAR 26.11.09.05, which contains opacity limitations in Maryland, as no part of that regulation was included in the November 24, 2015 submittal. The version of COMAR 26.11.09.05 which EPA approved in 2007 remains in the SIP. See 72 FR 41891 (August 1, 2007) (approving version of COMAR 26.11.09.05 for SIP with State effective date of November 24, 2003). EPA also confirms that the NPR did not include proposed action on the provisions in COMAR 26.11.01.10(A)(4), addressing removal of COMS, as that portion of COMAR 26.11.01.10 was removed from EPA's consideration by a February 26, 2016 supplemental letter from MDE requesting that certain sections be struck from the submittal. In EPA's TSD which supported the NPR, EPA clearly explained the exclusions from our proposed approval action, stating that none of the newly adopted changes to COMAR 26.11.09 Control of Fuel-Burning Equipment, Stationary Internal Combustion Engines, and Certain Fuel-Burning Installations were included in the November 24, 2015 SIP submittal as MDE stated it intended to make further revisions to COMAR 26.11.09 before separately submitting for inclusion into the State's SIP. EPA also confirms that the NPR and TSD clearly indicated COMAR 26.11.01.10A(4), B(4), D(2)(c), and F were excluded from the November 24, 2015 SIP submittal by MDE's February 26, 2016 supplemental submission. As to the Commenter's statement regarding the use of substitutes for COMs or the appropriateness of alternatives to use of COMs, EPA first notes that the comment is not germane to the regulation EPA proposed to approve in the NPR as COMAR 26.11.01.10 in the November 24, 2015 SIP submittal, as amended February 26, 2016, does not address alternatives to use of COMs to demonstrate compliance nor address substitutes. Thus, EPA provides no further response to the Commenter's general statement regarding appropriateness of substituting for COMs. However, EPA notes generally that choice of compliance methods is left to State's for due consideration. Congress established the CAA such that each state has primary responsibility for assuring air quality within the state and such that each state determines an emission reduction program for its areas to attain and maintain air quality, 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 (D.C. Cir. 1995)). While the requirement for Method 9 for compliance determinations is not part of the Maryland regulation for which EPA proposed approval, EPA notes that states have flexibility in devising and developing their choices as to the means of achieving attainment and maintenance of a NAAQS. This flexibility has been affirmed by the courts. Id. See also Train v. NRDC, 421 U.S. 60 (1975). EPA cannot disapprove a SIP revision simply based upon a state's choice of a particular emission monitoring requirement, such as a COM or CEM, as long as the SIP revision otherwise meets the requirements of the CAA. As explained in the NPR and the TSD, Maryland's November 24, 2015 SIP submission meets the requirements of the CAA under section 110. With respect to the use of COMs, EPA Reference Method 9, or PM CEMs for determining compliance with opacity requirements, the choice of compliance methodology is a choice for the state as long as the state does not prohibit the use of credible evidence. EPA's credible evidence rule (62 FR 8314 (February 24, 1997)) provided clarifications regarding the use of any relevant credible evidence or information for determining compliance with an applicable emission limit or requirement. The credible evidence revisions consisted of various changes to 40 CFR 51.212, 52.12, 52.30, 60.11 and 61.12. These revisions provided minor modifications to existing regulatory provisions to clearly allow for the use of any credible evidence--that is, both reference test and comparable non-reference test data--to prove or disprove violations of the CAA in enforcement actions. These revisions make clear that EPA, states and citizens acting pursuant to section 304 of the CAA can prosecute actions for violations of CAA provisions and federally approved SIPs based exclusively on any credible evidence, without the need to rely on any data from a particular reference test (such as EPA Reference Method 9). The revisions also have the effect of eliminating any potential ambiguity regarding the use of non-reference test data, including COMs and CEMs, as a basis for supporting violations. 40 CFR 51.212 specifically provides that ``[f]or the purpose of . . . establishing whether or not a person has violated or is in violation of any standard in this part, the plan must not preclude the use, including the exclusive use, of any credible evidence or information, relevant to whether a source would have been in compliance with applicable requirements if the appropriate performance or compliance test or procedure had been performed.'' 40 CFR 51.212(c). In this rulemaking, EPA is approving a revision to COMAR 26.11.01.10 into the Maryland SIP which requires the use of COMs for determining compliance with SIP requirements. However, nothing in COMAR 26.11.01.10 precludes the use of credible evidence such as PM CEMs data or EPA Reference Method 9 readings to determine compliance with regulatory requirements including opacity limitations. Thus, the regulation at COMAR 26.11.01.10 submitted for SIP approval addresses and meets 40 CFR 51.212 as it does not preclude the use of credible evidence and addresses section 110 of the CAA for the Maryland SIP. The revisions to COMAR 26.11.01.01 and 26.11.01.10 and new provisions in COMAR 26.11.01.11 and 26.11.31 are approvable for the SIP. Because the Maryland regulation at COMAR 26.11.01.10 submitted for SIP approval does not specifically address substitution of other compliance methods or discontinuation of COMs at stationary sources, EPA provides no further response to Commenter's concerns regarding compliance methodologies. Comment 2: The Commenter expressed concern about attempts to weaken the opacity limits in the Maryland SIP and about State regulatory changes that created exemptions to the opacity limits. However, the Commenter acknowledged that the exceptions to the opacity limits are contained in COMAR 26.11.09.05 and COMAR 26.11.01.10(A)(4), both of which are not a part of the SIP revision submittal that EPA proposed to approve in the NPR. Commenter acknowledged EPA's approval of the November 24, 2015 SIP submittal (as amended February 26, 2016) would not incorporate these ``exceptions into the SIP.'' Response 2: EPA thanks the Commenter for its acknowledgments. As the Commenter clearly stated, EPA's NPR does not propose action on any revised provisions in COMAR 26.11.09.05 nor propose any action on COMAR 26.11.01.10(A)(4), as MDE withdrew that provision from EPA's consideration with the February 26, 2016 supplemental letter. Thus, no further response is necessary to Commenter's statements. [[Page 78051]] III. Final Action Pursuant to section 110 of the CAA, EPA is approving for the Maryland SIP the revisions to requirements for COMs and CEMs in COMAR 26.11.01.01, COMAR 26.11.01.05 and COMAR 26.11.01.10, approving new provisions for COMs and CEMs at COMAR 26.11.01.11 and approving new requirements for quality assurance for CEMs at COMAR 26.11.31. IV. Incorporation by Reference In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the revised requirements for COMs and CEMs in COMAR 26.11.01.01, 26.11.01.05, 26.11.01.10, and 26.11.01.11 and QA/QC requirements for COMs in new regulation COMAR 26.11.31. Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.\2\ EPA has made, and will continue to make, these materials generally available through http://www.regulations.gov and/or at the EPA Region III Office (please contact the person identified in the ``For Further Information Contact'' section of this preamble for more information). --------------------------------------------------------------------------- \2\ 62 FR 27968 (May 22, 1997). --------------------------------------------------------------------------- V. Statutory and Executive Order Reviews A. General Requirements Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:Is not a ``significant regulatory action'' subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4); does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, 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 6, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approving COMs and CEMs revisions to Maryland regulations 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, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements. Dated: September 29, 2016. Shawn M. Garvin, 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: 0 a. Revising the entries for COMAR 26.11.01.01, COMAR 26.11.01.05, and COMAR 26.11.01.10; and 0 b. Adding the entries COMAR 26.11.01.11 and COMAR 26.11.31. The revisions and additions read as follows: Sec. 52.1070 Identification of plan. * * * * * (c) * * * [[Page 78052]] EPA-Approved Regulations, Technical Memoranda, and Statutes in the Maryland SIP ---------------------------------------------------------------------------------------------------------------- Additional Code of Maryland State explanation/ Administrative Regulations Title/subject effective date EPA approval date citation at 40 CFR (COMAR) citation 52.1100 ---------------------------------------------------------------------------------------------------------------- * * * * * * * ---------------------------------------------------------------------------------------------------------------- 26.11.01 General Administrative Provisions ---------------------------------------------------------------------------------------------------------------- 26.11.01.01.................... Definitions......... 5/17/2010 11/7/2016 [Insert New definition for Federal Register COMs and clarify citation]. definition for CEMs. * * * * * * * 26.11.01.05.................... Records and 5/17/2010 11/7/2016 [Insert (c)(172) Information. Federal Register Administrative citation]. changes to reporting and recordkeeping requirements. * * * * * * * 26.11.01.10.................... Continuous Opacity 8/22/2010 11/7/2016 [Insert (c)(106) Monitoring. Federal Register Requirement to use citation]. TM 90-01 is removed. Exceptions: A(4), B(4), D(2)(c), and F. 26.11.01.11.................... Continuous Emissions 8/22/2010 11/7/2016 [Insert Monitoring. Federal Register citation]. * * * * * * * 26.11.31....................... Quality Assurance 6/13/2011 11/7/2016 [Insert Requirements for Federal Register Opacity Monitors citation]. (COMs). * * * * * * * ---------------------------------------------------------------------------------------------------------------- * * * * * [FR Doc. 2016-26866 Filed 11-4-16; 8:45 am] BILLING CODE 6560-50-P
![78048 Federal Register / Vol. 81, No. 215 / Monday, November 7, 2016 / Rules and Regulations
L. Judicial Review § 49.172 Final permit issuance and § 52.21 Prevention of significant
administrative and judicial review. deterioration of air quality.
Under CAA section 307(b)(1), * * * * * * * * * *
petitions for judicial review of any (w) * * *
(f) Can my permit be rescinded? (1)
nationally applicable regulation, or any (1) Any permit issued under this
Any permit issued under this section or
action the Administrator ‘‘finds and section or a prior version of this section
a prior version of this section shall
publishes’’ as based on a determination shall remain in effect, unless and until
remain in effect until it is rescinded
of nationwide scope or effect must be it expires under paragraph (r) of this
under this paragraph (f).
filed in the United States Court of section or is rescinded under this
Appeals for the District of Columbia (2) An owner or operator of a
stationary source or modification who paragraph (w).
Circuit within 60 days of the date the (2) An owner or operator of a
promulgation, approval, or action holds a permit issued under this section
for the construction of a new source or stationary source or modification who
appears in the Federal Register. This holds a permit issued under this section
action is nationally applicable, as it modification that meets the requirement
in paragraph (f)(3) of this section may for the construction of a new source or
adds Permit Rescission provisions to 40 modification that meets the requirement
CFR part 49 and revises the rules request that the reviewing authority
rescind the permit or a particular in paragraph (w)(3) of this section may
governing procedures permit rescissions request that the Administrator rescind
in 40 CFR part 52. As a result, petitions portion of the permit.
the permit or a particular portion of the
for review of this final action must be (3) The reviewing authority may grant
permit.
filed in the United States Court of an application for rescission if the
(3) The Administrator may grant an
Appeals for the District of Columbia application shows that §§ 49.166
application for rescission if the
Circuit by January 6, 2017. Filing a through 49.173 would not apply to the
application shows that this section
petition for reconsideration by the source or modification.
would not apply to the source or
Administrator of this final action does (4) If the reviewing authority rescinds modification.
not affect the finality of this action for a permit under this paragraph (f), the
the purposes of judicial review nor does public shall be given adequate notice of * * * * *
[FR Doc. 2016–26593 Filed 11–4–16; 8:45 a.m.]
it extend the time within which a the rescission determination in
BILLING CODE 6560–50–P
petition for judicial review must be accordance with one or more of the
filed, and shall not postpone the following methods:
effectiveness of this action. (i) The reviewing authority may mail ENVIRONMENTAL PROTECTION
VI. Statutory Authority or email a copy of the notice to persons AGENCY
on a mailing list developed by the
The statutory authority for this action reviewing authority consisting of those 40 CFR Part 52
is provided by 42 U.S.C. 7401, et seq. persons who have requested to be
placed on such a mailing list. [EPA–R03–OAR–2016–0042; FRL–9954–40–
List of Subjects Region 3]
(ii) The reviewing authority may post
40 CFR Part 49 the notice on its Web site. Approval and Promulgation of Air
Environmental protection, (iii) The reviewing authority may Quality Implementation Plans;
Administrative practice and procedure, publish the notice in a newspaper of Maryland; Revisions and Amendments
Air pollution control, Incorporation by general circulation in the area affected to Regulations for Continuous Opacity
reference. by the source. Where possible, the Monitoring, Continuous Emissions
notice may also be published in a Tribal Monitoring, and Quality Assurance
40 CFR Part 52 newspaper or newsletter. Requirements for Continuous Opacity
Environmental protection, Air (iv) The reviewing authority may Monitors
pollution control, Incorporation by provide copies of the notice for posting
at one or more locations in the area AGENCY: Environmental Protection
reference. Agency (EPA).
affected by the source, such as Post
Dated: October 26, 2016. ACTION: Final rule.
Offices, trading posts, libraries, Tribal
Gina McCarthy, environmental offices, community
Administrator. centers or other gathering places in the SUMMARY: The Environmental Protection
community. Agency (EPA) is approving a state
For the reasons stated in the
implementation plan (SIP) revision
preamble, title 40, chapter I of the Code (v) The reviewing authority may submitted by the State of Maryland. The
of Federal Regulations is amended as employ other means of notification as revision pertains to changes and
follows: appropriate. amendments to Maryland regulations
PART 49—INDIAN COUNTRY: AIR PART 52—APPROVAL AND for continuous opacity monitoring
QUALITY PLANNING AND PROMULGATION OF (COM or COMs) and continuous
MANAGEMENT IMPLEMENTATION PLANS emissions monitoring (CEM or CEMs)
and to an amendment adding
■ 1. The authority citation for part 49 ■ 3. The authority citation for part 52 requirements for Quality Assurance and
continues to read as follows: continues to read as follows: Quality Control (QA/QC) as they pertain
to COMs. EPA is approving these
Authority: 42 U.S.C. 7401, et seq. Authority: 42 U.S.C. 7401 et seq.
ehiers on DSK5VPTVN1PROD with RULES
revisions to the COMs and CEMs
Subpart C—General Federal requirements in accordance with the
Subpart A—General Provisions
Implementation Plan Provisions requirements of the Clean Air Act
■ 4. Section 52.21 is amended by (CAA).
■ 2. Section 49.172 is amended by revising paragraphs (w)(1) through (3) to This final rule is effective on
DATES:
adding paragraph (f) to read as follows: read as follows: December 7, 2016.
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![Federal Register / Vol. 81, No. 215 / Monday, November 7, 2016 / Rules and Regulations 78049
ADDRESSES: EPA has established a large fuel-burning equipment burning dated April 5, 2016, and will not be
docket for this action under Docket ID coal and residual oil to install COMs restated here. The NPR and TSD can be
Number EPA–R03–OAR–2016–0042. All and demonstrate compliance using found in the docket for this rulemaking
documents in the docket are listed on COM data. The regulation established action available online at http://
the http://www.regulations.gov Web monitoring requirements, CEM www.regulations.gov.
site. Although listed in the index, some installation requirements, CEM
III. Public Comments and EPA
information is not publicly available, installation and certification schedules,
Responses
e.g., confidential business information quality assurance procedures for opacity
(CBI) or other information whose monitors, and record keeping and EPA received one set of comments on
disclosure is restricted by statute. reporting requirements. The regulation the proposal from the Environmental
Certain other material, such as had previously incorporated by Integrity Project and the Chesapeake
copyrighted material, is not placed on reference Maryland’s Technical Climate Action Network (collectively
the Internet and will be publicly Memorandum 90–01 (TM 90), and referred to herein as ‘‘Commenter’’).
available only in hard copy form. required compliance determinations for This set of these comments is provided
Publicly available docket materials are the State’s visible emissions limits and in the docket for today’s final
available through http:// QA/QC for COMs in accordance with rulemaking action.
www.regulations.gov, or please contact the procedures therein. The terms CEMs Comment 1: The Commenter stated
the person identified in the ‘‘For Further and COMs were used interchangeably in that it thought the SIP revision would
Information Contact’’ section for COMAR 26.11.01.10; therefore, MDE improve the Maryland SIP because it
additional availability information. determined it was necessary to establish separates the requirements for COMs
FOR FURTHER INFORMATION CONTACT: separate requirements for each. from the requirements for CEMs.
Marilyn Powers, (215) 814–2308, or by The November 24, 2015 SIP submittal, However, because of its concern
email at powers.marilyn@epa.gov. as clarified and amended on February regarding some of Maryland’s
26, 2016 by MDE, includes revisions to permitting and enforcement actions on
SUPPLEMENTARY INFORMATION:
COMs and CEMs definitions in COMAR opacity and particulate matter (PM)
I. Background 26.11.01.01, administrative changes to issues, the Commenter submitted
On June 17, 2016 (81 FR 39605), EPA reporting and recordkeeping comments ‘‘to explain our
published a notice of proposed requirements in COMAR 26.11.01.05, a understanding of the effect of the SIP
rulemaking (NPR) for the State of revised COMAR 26.11.01.10 for COMs, revision that EPA is proposing to
Maryland. In the NPR, EPA proposed a new COMAR 26.11.01.11 for CEMs, approve.’’ The Commenter expressed
approval of revisions and amendments and new COMAR 26.11.31 for QA/QC concern with allowing ‘‘ineffective
to COMAR 26.11.01 General procedures related to COMs. The technical methods’’ in compliance
Administrative Requirements related to November 24, 2015 submittal, as demonstrations for opacity limits. The
requirements for COMs and CEMs and amended by MDE’s February 26, 2016 Commenter stated that a COM is an
the addition of new COMAR 26.01.31 letter, removes the requirement to use effective method of measuring
Quality Assurance Requirements for TM 90 for enforcement actions and for compliance with Maryland’s SIP opacity
Continuous Opacity Monitors (COMs). QA/QC requirements on applicable fuel- limits and reserved judgment on
The formal SIP revision (#15–05) was burning equipment and removes whether it is ever appropriate to
submitted by Maryland through the references to TM 90. substitute another technology for COMs
Maryland Department of the to demonstrate compliance with opacity
II. Summary of SIP Revision limits. The Commenter stated that if a
Environment (MDE) on November 24,
2015. On February 26, 2016, MDE The SIP revision is comprised of four technology is to be substituted for
provided a supplemental letter state actions pertaining to adjusted COMs, it should include PM CEMS
indicating MDE was excluding portions requirements for COMs and CEMs in paired with an approved method that
of COMAR 26.11.01.10 submitted in the COMAR 26.11.01.01, COMAR accounts for the condensable portion of
November 24, 2015 SIP submittal from 26.11.01.05 and COMAR 26.11.01.10, PM. The Commenter stated that, for
EPA’s review and consideration as a SIP new CEMs provisions in COMAR various reasons, EPA Reference Method
revision. The February 26, 2016 letter 26.11.01.11, and new QA/QC 9, by itself, is not a sufficient substitute
requirements in COMAR 26.11.31. for COMs due to infrequency and
from MDE is available in the docket for
These four actions are a series of weather condition issues. The
this rulemaking and is available online
regulatory actions that result in a Commenter acknowledged that the
at http://www.regulations.gov.1
EPA had previously approved recodification of some existing proposed action to approve revisions to
Maryland regulation COMAR requirements for COMs and CEMs, COMAR 26.11.01.10, 26.11.01.11 and
26.11.01.10 Continuous Emissions establishment of separate regulations 26.11.01.01 for the Maryland SIP does
Monitoring (CEM) Requirements into the and requirements for COMs and CEMs, not ‘‘allow Method 9 observations as a
Maryland SIP on February 28, 1996. 61 removal of applicability of TM 90 for substitute for COM in compliance
certain fuel-burning equipment and demonstrations for opacity.’’ The
FR 7418. COMAR 26.11.01.10 required
removal of references to TM 90, and Commenter noted that COMAR
1 Specifically, in the February 26, 2016 letter from codification of the QA/QC requirements 26.11.01.10(A)(4), which allows fuel-
MDE to EPA, MDE withdrew from EPA’s review for COMs that were formerly burning sources to discontinue use of
and consideration the text in COMAR incorporated by reference in TM 90 into COMs under certain circumstances is
26.11.01.10.A(4), in COMAR 26.11 .01.10.B(4), in a new COMAR 26.11.31. Other specific not part of the November 24, 2015 SIP
COMAR 26.11.01.10D(2)(c), and in COMAR
requirements of the revised and revision, as amended February 26, 2016,
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26.11.01.10.F which had initially been included in
the November 25, 2015 SIP submittal. MDE amended COMAR regulations, and the which EPA proposed to approve.
excluded provisions in COMAR 26.11.01.10 that rationale for EPA’s approval action Finally, the Commenter stated that no
refer to sections or subsections of COMAR 26.11.09 finding the regulations in accordance part of COMAR 26.11.09.05 [which
that are not yet in the State’s SIP. MDE plans to
submit the COMAR 26.11.09 revisions along with
with section 110 of the CAA are contains Maryland’s opacity limitation]
these related provisions for approval into the SIP explained in the NPR and in EPA’s was submitted with the November 24,
at a later date. Technical Support Document (TSD) 2015 SIP submittal, and thus no
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![78050 Federal Register / Vol. 81, No. 215 / Monday, November 7, 2016 / Rules and Regulations
provision in the November 24, 2015 SIP and maintain air quality, subject to EPA violated or is in violation of any
submission allows discontinuation of approval, with such approval dependent standard in this part, the plan must not
COM at fuel burning sources. upon whether the SIP as a whole meets preclude the use, including the
Response 1: EPA thanks the the applicable requirements of the CAA. exclusive use, of any credible evidence
Commenter for its statements. EPA See Commonwealth of Virginia, et al., v. or information, relevant to whether a
confirms Commenter’s statement that EPA, 108 F.3d 1397, 1410 (D.C. Cir. source would have been in compliance
the NPR did not propose any action on 1997) (citing Natural Resources Defense with applicable requirements if the
COMAR 26.11.09.05, which contains Council, Inc. v. Browner, 57 F.3d 1122, appropriate performance or compliance
opacity limitations in Maryland, as no 1123 (D.C. Cir. 1995)). While the test or procedure had been performed.’’
part of that regulation was included in requirement for Method 9 for 40 CFR 51.212(c). In this rulemaking,
the November 24, 2015 submittal. The compliance determinations is not part of EPA is approving a revision to COMAR
version of COMAR 26.11.09.05 which the Maryland regulation for which EPA 26.11.01.10 into the Maryland SIP
EPA approved in 2007 remains in the proposed approval, EPA notes that which requires the use of COMs for
SIP. See 72 FR 41891 (August 1, 2007) states have flexibility in devising and determining compliance with SIP
(approving version of COMAR developing their choices as to the means requirements. However, nothing in
26.11.09.05 for SIP with State effective of achieving attainment and COMAR 26.11.01.10 precludes the use
date of November 24, 2003). EPA also maintenance of a NAAQS. This of credible evidence such as PM CEMs
confirms that the NPR did not include flexibility has been affirmed by the data or EPA Reference Method 9
proposed action on the provisions in courts. Id. See also Train v. NRDC, 421 readings to determine compliance with
COMAR 26.11.01.10(A)(4), addressing U.S. 60 (1975). EPA cannot disapprove regulatory requirements including
removal of COMS, as that portion of a SIP revision simply based upon a opacity limitations. Thus, the regulation
COMAR 26.11.01.10 was removed from state’s choice of a particular emission at COMAR 26.11.01.10 submitted for
EPA’s consideration by a February 26, monitoring requirement, such as a COM SIP approval addresses and meets 40
2016 supplemental letter from MDE or CEM, as long as the SIP revision CFR 51.212 as it does not preclude the
requesting that certain sections be otherwise meets the requirements of the use of credible evidence and addresses
struck from the submittal. In EPA’s TSD CAA. As explained in the NPR and the section 110 of the CAA for the Maryland
which supported the NPR, EPA clearly TSD, Maryland’s November 24, 2015 SIP. The revisions to COMAR
explained the exclusions from our SIP submission meets the requirements 26.11.01.01 and 26.11.01.10 and new
proposed approval action, stating that of the CAA under section 110. provisions in COMAR 26.11.01.11 and
none of the newly adopted changes to 26.11.31 are approvable for the SIP.
COMAR 26.11.09 Control of Fuel- With respect to the use of COMs, EPA
Reference Method 9, or PM CEMs for Because the Maryland regulation at
Burning Equipment, Stationary Internal COMAR 26.11.01.10 submitted for SIP
Combustion Engines, and Certain Fuel- determining compliance with opacity
requirements, the choice of compliance approval does not specifically address
Burning Installations were included in substitution of other compliance
the November 24, 2015 SIP submittal as methodology is a choice for the state as
long as the state does not prohibit the methods or discontinuation of COMs at
MDE stated it intended to make further stationary sources, EPA provides no
revisions to COMAR 26.11.09 before use of credible evidence. EPA’s credible
evidence rule (62 FR 8314 (February 24, further response to Commenter’s
separately submitting for inclusion into concerns regarding compliance
the State’s SIP. EPA also confirms that 1997)) provided clarifications regarding
the use of any relevant credible methodologies.
the NPR and TSD clearly indicated
COMAR 26.11.01.10A(4), B(4), D(2)(c), evidence or information for determining Comment 2: The Commenter
and F were excluded from the compliance with an applicable emission expressed concern about attempts to
November 24, 2015 SIP submittal by limit or requirement. The credible weaken the opacity limits in the
MDE’s February 26, 2016 supplemental evidence revisions consisted of various Maryland SIP and about State regulatory
submission. changes to 40 CFR 51.212, 52.12, 52.30, changes that created exemptions to the
As to the Commenter’s statement 60.11 and 61.12. These revisions opacity limits. However, the Commenter
regarding the use of substitutes for provided minor modifications to acknowledged that the exceptions to the
COMs or the appropriateness of existing regulatory provisions to clearly opacity limits are contained in COMAR
alternatives to use of COMs, EPA first allow for the use of any credible 26.11.09.05 and COMAR
notes that the comment is not germane evidence—that is, both reference test 26.11.01.10(A)(4), both of which are not
to the regulation EPA proposed to and comparable non-reference test a part of the SIP revision submittal that
approve in the NPR as COMAR data—to prove or disprove violations of EPA proposed to approve in the NPR.
26.11.01.10 in the November 24, 2015 the CAA in enforcement actions. These Commenter acknowledged EPA’s
SIP submittal, as amended February 26, revisions make clear that EPA, states approval of the November 24, 2015 SIP
2016, does not address alternatives to and citizens acting pursuant to section submittal (as amended February 26,
use of COMs to demonstrate compliance 304 of the CAA can prosecute actions 2016) would not incorporate these
nor address substitutes. Thus, EPA for violations of CAA provisions and ‘‘exceptions into the SIP.’’
provides no further response to the federally approved SIPs based Response 2: EPA thanks the
Commenter’s general statement exclusively on any credible evidence, Commenter for its acknowledgments. As
regarding appropriateness of without the need to rely on any data the Commenter clearly stated, EPA’s
substituting for COMs. from a particular reference test (such as NPR does not propose action on any
However, EPA notes generally that EPA Reference Method 9). The revisions revised provisions in COMAR
choice of compliance methods is left to also have the effect of eliminating any 26.11.09.05 nor propose any action on
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State’s for due consideration. Congress potential ambiguity regarding the use of COMAR 26.11.01.10(A)(4), as MDE
established the CAA such that each state non-reference test data, including COMs withdrew that provision from EPA’s
has primary responsibility for assuring and CEMs, as a basis for supporting consideration with the February 26,
air quality within the state and such that violations. 40 CFR 51.212 specifically 2016 supplemental letter. Thus, no
each state determines an emission provides that ‘‘[f]or the purpose of . . . further response is necessary to
reduction program for its areas to attain establishing whether or not a person has Commenter’s statements.
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![78052 Federal Register / Vol. 81, No. 215 / Monday, November 7, 2016 / Rules and Regulations
EPA-APPROVED REGULATIONS, TECHNICAL MEMORANDA, AND STATUTES IN THE MARYLAND SIP
Code of Maryland
Administrative State effective Additional explanation/
Title/subject EPA approval date
Regulations (COMAR) date citation at 40 CFR 52.1100
citation
* * * * * * *
26.11.01 General Administrative Provisions
26.11.01.01 ............... Definitions ................................... 5/17/2010 11/7/2016 [Insert Federal Reg- New definition for COMs and
ister citation]. clarify definition for CEMs.
* * * * * * *
26.11.01.05 ............... Records and Information ............ 5/17/2010 11/7/2016 [Insert Federal Reg- (c)(172) Administrative changes
ister citation]. to reporting and record-
keeping requirements.
* * * * * * *
26.11.01.10 ............... Continuous Opacity Monitoring .. 8/22/2010 11/7/2016 [Insert Federal Reg- (c)(106) Requirement to use TM
ister citation]. 90–01 is removed. Excep-
tions: A(4), B(4), D(2)(c), and
F.
26.11.01.11 ............... Continuous Emissions Moni- 8/22/2010 11/7/2016 [Insert Federal Reg-
toring. ister citation].
* * * * * * *
26.11.31 .................... Quality Assurance Requirements 6/13/2011 11/7/2016 [Insert Federal Reg-
for Opacity Monitors (COMs). ister citation].
* * * * * * *
* * * * * This action is being taken under the 02), U.S. Environmental Protection
[FR Doc. 2016–26866 Filed 11–4–16; 8:45 am] Clean Air Act. Agency, Region 1, 5 Post Office Square,
BILLING CODE 6560–50–P DATES: This rule is effective on Suite 100, Boston, Massachusetts,
December 7, 2016. 02109–3912; (617) 918–1684;
ADDRESSES: EPA has established a simcox.alison@epa.gov.
ENVIRONMENTAL PROTECTION docket for this action under Docket SUPPLEMENTARY INFORMATION:
AGENCY Identification No. EPA–R01–OAR– Throughout this document whenever
40 CFR Part 52 2016–0285. All documents in the docket ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
are listed on the http:// EPA.
[EPA–R01–OAR–2016–0285; FRL–9953–83- www.regulations.gov Web site. Although Organization of this document. The
Region 1] listed in the index, some information is following outline is provided to aid in
not publicly available, i.e., CBI or other locating information in this preamble.
Air Plan Approval; NH; Rules for information whose disclosure is
Reducing Particulate Emissions I. Background and Purpose
restricted by statute. Certain other II. Final Action
AGENCY: Environmental Protection material, such as copyrighted material, III. Incorporation by Reference
Agency (EPA). is not placed on the Internet and will be IV. Statutory and Executive Order Reviews
ACTION: Final rule.
publicly available only in hard copy
form. Publicly available docket I. Background and Purpose
SUMMARY: The Environmental Protection materials are available at http:// On August 22, 2016 (81 FR 56556),
Agency (EPA) is approving State www.regulations.gov or at the U.S. EPA published a Notice of Proposed
Implementation Plan (SIP) revisions Environmental Protection Agency, EPA Rulemaking (NPR) for the State of New
submitted by the State of New New England Regional Office, Office of Hampshire.
Hampshire on March 31, 2011 and on Ecosystem Protection, Air Quality The NPR proposed approval of State
July 23, 2013. These SIP revisions Planning Unit, 5 Post Office Square— Implementation Plan (SIP) revisions
establish particulate matter (PM) and Suite 100, Boston, MA. EPA requests submitted by the State of New
visible emissions (VE) standards for the that if at all possible, you contact the Hampshire on March 31, 2011 and July
following sources: foundries, smelters, contact listed in the FOR FURTHER 23, 2013. The NPR also proposed
and investment casting operations; hot INFORMATION CONTACT section to approval of a part of a SIP revision
mix asphalt plants; and sand and gravel schedule your inspection. The Regional submitted by the state on March 12,
sources, non-metallic mineral Office’s official hours of business are 2003. The March 2011 submittal
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processing plants, and cement and Monday through Friday, 8:30 a.m. to included a regulation entitled ‘‘Sand
concrete sources. In addition, EPA is 4:30 p.m., excluding legal holidays. and Gravel Sources; Non-Metallic
approving a part of a SIP revision FOR FURTHER INFORMATION CONTACT: Mineral Processing Plants; Cement and
submitted by New Hampshire on March Alison C. Simcox, Environmental Concrete Sources’’ (New Hampshire
12, 2003 that establishes procedures for Scientist, Air Quality Planning Unit, Air Code of Administrative Rules Chapter
testing opacity of emissions (i.e., VE). Programs Branch (Mail Code OEP05– (Env-A 2800)). The July 2013 submittal
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Document Created: 2018-02-14 08:21:29
Document Modified: 2018-02-14 08:21:29
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This final rule is effective on December 7, 2016. | |
| Contact | Marilyn Powers, (215) 814-2308, or by email at [email protected] | |
| FR Citation | 81 FR 78048 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Incorporation by Reference; Nitrogen Dioxide; Ozone; Particulate Matter and Reporting and Recordkeeping Requirements |
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