Approval and Promulgation of Air Quality Implementation Plans; Maryland (Actions on Permits and Approvals)

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MD31-1-6371a; FRL-5059-9]

Approval and Promulgation of Air Quality Implementation Plans;

Maryland (Actions on Permits and Approvals)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision

submitted by the State of Maryland. This revision requires the State of

Maryland to offer the public an opportunity to request a public hearing

before issuing a permit to construct certain sources. The intended

effect of this action is to incorporate by reference into the

federally-enforceable SIP revised State regulations which meet current

Federal requirements. This action is being taken under section 110 of

the Clean Air Act.

DATES: This final rule will become effective November 7, 1994 unless

notice is received on or before October 7, 1994 that adverse or

critical comments will be submitted. If the effective date is delayed,

timely notice will be published in the Federal Register.

ADDRESSES: Comments may be mailed to Thomas J. Maslany, Director, Air,

Radiation, and Toxics Division, U.S. Environmental Protection Agency,

Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107.

Copies of the documents relevant to this action are available for

public inspection during normal business hours at the Air, Radiation,

and Toxics Division, U.S. Environmental Protection Agency, Region III,

841 Chestnut Building, Philadelphia, Pennsylvania 19107; the Air and

Radiation Docket and Information Center, U.S. Environmental Protection

Agency, 401 M Street, SW., Washington, DC 20460; and the Maryland

Department of the Environment, 2500 Broening Highway, Baltimore

Maryland 21224.

FOR FURTHER INFORMATION CONTACT: Harold A. Frankford (3AT10), (215)

597-1325.

SUPPLEMENTARY INFORMATION: On March 30, 1987, the State of Maryland

submitted a formal revision to its State Implementation Plan (SIP). The

State's submittal consists of revisions to the Code of Maryland

Administrative Regulations (COMAR) 26.11.02.10C. regarding action on a

permit application and approval of new sources. At the time of

submittal, the official State citation for this amendment was COMAR

10.18.02.03H. However, the State recodified its air pollution

regulations in 1988, and EPA approved this recodification scheme as a

SIP revision on November 3, 1992 (57 FR 49651). One of the revisions

associated with EPA's approval of the Maryland's recodification

pertained to the transfer of the air permitting program from the

Departement of Health and Mental Hygiene (DHMH) to the Department of

the Environment (MDE). Therefore, EPA will address these amendments in

terms of the current COMAR citations and the permitting authority

currently vested with MDE.

Description of Revisions

The revisions to COMAR 26.11.02.10C. offers the public the

opportunity to request a public hearing before the State may issue a

permit to construct for any of the following scenarios: Any source will

be required to obtain a permit to operate under COMAR 26.11.02.04

(formerly COMAR 10.18.02.03B.), any source subject to the Federal

standards under 40 CFR part 60 (New Source Performance Standards

(NSPS]), 40 CFR part 61 (National Emission Standards for Hazardous Air

Pollutants (NESHAP)), or 40 CFR 52.21 (Prevention of Significant

Deterioration (PSD)), any stationary source of lead (Pb) that

discharges 100 tons per year or more of lead or lead compounds measured

as elemental lead (Pb), any source that discharges 100 tons per year or

more for any pollutant, and any new source impacting on a nonattainment

area (NSINA). (Note: Effective April 26, 1993, Maryland has replaced

the term ``NSINA'' with ``new source review'' (``NSR''). EPA will

formally incorporate this revised term into the Maryland SIP in a

separate rulemaking action.)

The revised provisions to COMAR 26.11.02.10C. will be implemented

by following certain procedures. If the MDE makes a preliminary

determination to issue a permit or approval, the applicant will publish

an advertisement in a newspaper in the area of concern which will allow

10 days for the public to request a public hearing and 30 days for

public comment. If the MDE receives a request for a public hearing, the

MDE will schedule a hearing. A notice of the hearing will be published

in a newspaper in the area of concern at least 30 days in advance of

the hearing. If a public hearing is held, the MDE must issue the permit

or approval within 60 days after the conclusion of the public hearing,

except that the department must issue the permit or approval within

five working days after the conclusion of the public hearing if no

information is presented that would affect the issuance of the permit

or approval. These provisions are codified at COMAR 26.11.02.10C.(1)

through 26.11.02.10C.(9). (Note: On July 27, 1993 (58 FR 40060), EPA

had approved a revision to the Maryland SIP which cross-references 40

CFR 52.21 as amended through 1989. This revision is codified in the

Maryland SIP at 40 CFR 52.1070(c)(95).) If the permit or approval is to

be denied, it must be done within 60 days after receiving all

information necessary to act on the application. (COMAR 26.11.02.10D,

26.11.02.10E).

As required by 40 CFR 51.102, the State of Maryland certified that,

after adequate public notice, a public hearing was held on September

30, 1986 concerning the revisions to COMAR 26.11.02.10C.

EPA Evaluation

The implementation of revised COMAR 26.11.02.10C. will have no

adverse economic impact on the State or local agencies. Similarly, the

amendment will have no direct impact on air quality because it only

addresses procedural matters such as the opportunity for public hearing

and does not affect any air quality standards. The amendment will give

the public more opportunity to learn about and potentially influence

the MDE's decisions on the issuance of permits. The specific public

participation requirements found in revised COMAR 26.11.02.10C. are

consistent with those found in 40 CFR 51.160 and 51.161.

Final Action

EPA is approving the revisions to COMAR 26.11.02.10C. as a revision

to the Maryland SIP. The Agency has also reviewed this SIP revision

request for conformance with the provisions of the 1990 amendments

enacted on November 15, 1990, and has determined that this action

conforms with those requirements irrespective of the fact that the

submittal preceded the date of enactment.

EPA is approving this SIP revision without prior proposal because

the Agency views this as a noncontroversial amendment and anticipates

no adverse comments. However, in a separate document in this Federal

Register publication, EPA is proposing to approve the SIP revision

should adverse or critical comments be filed. This action will be

effective November 7, 1994 unless, by October 7, 1994, adverse or

critical comments are received.

If EPA receives such comments, this action will be withdrawn before

the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will then be

addressed in a subsequent final rule based on this action serving as a

proposed rule. EPA will not institute a second comment period on this

action. Any parties interested in commenting on this action should do

so at this time. If no such comments are received, the public is

advised that this action will be effective on November 7, 1994.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any state implementation plan. Each request for revision to

the state implementation plan shall be considered separately in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under section 110 and subchapter I, part D of the

Clean Air Act do not create any new requirements but simply approve

requirements that the State is already imposing. Therefore, because the

Federal SIP approval does not impose any new requirements, the

Administrator certifies that it does not have a significant impacton

any small entities affected. Moreover, due to the nature of the

Federal-State relationship under the CAA, preparation of a flexibility

analysis would constitute Federal inquiry into the economic

reasonableness of state action. The Clean Air Act forbids EPA to base

its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.

EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by

an October 4, 1993 memorandum from Michael H. Shapiro, Acting Assistant

Administrator for Air and Radiation. The OMB has exempted this

regulatory action from E.O. 12866 review.

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action to approve revisions to COMAR

26.11.02.10C. governing Maryland's public participation requirements

before issuing construction permits to certain sources must be filed in

the United States Court of Appeals for the appropriate circuit by

November 7, 1994. Filing a petition for reconsideration by the

Administrator of this final rule does not affect the finality of this

rule 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 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,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Particulate matter, Reporting and

recordkeeping requirements, Sulfur Oxides.

Dated: August 19, 1994.

John R. Pomponio,

Acting Regional Administrator, Region III.

40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

Subpart V--Maryland

2. Section 52.1070 is amended by adding paragraph (c)(108) to read

as follows:

Sec. 52.1070 Identification of plan.

* * * * *

(c) * * *

(108) Revisions to the Code of Maryland Administrative Regulations

(COMAR) submitted on March 30, 1987 by the Maryland Department of

Health and Mental Hygiene:

(i) Incorporation by reference.

(A) Letter of March 30, 1987 from the Maryland Department of Health

and Mental Hygiene transmitting revisions to the Maryland State

Implementation Plan (SIP).

(B) Revised COMAR 10.18.02.03H. (Action on an Application for a

Permit and for Approval of a PSD Source or NSINA) (currently COMAR

26.11.02.10C.), effective March 24, 1987.

(ii) Additional material.

(A) Remainder of the March 30, 1987 State submittal pertaining to

COMAR 10.18.02.03H. (currently COMAR 26.11.02.10C.).

[FR Doc. 94-21944 Filed 9-6-94; 8:45 am]

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