Approval and Promulgation of Air Quality Implementation Plans; Maryland; Control of Volatile Organic Compound Emissions From Open Fires, ``Once-in, Always-in,'' and Definition for the Term ``Annual''

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MD040-3010a and MD048-3011a; FRL-5688-5]

Approval and Promulgation of Air Quality Implementation Plans;

Maryland; Control of Volatile Organic Compound Emissions From Open

Fires, ``Once-in, Always-in,'' and Definition for the Term ``Annual''

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving State Implementation Plan (SIP) revisions

submitted by the State of Maryland on July 12, 1995 and July 17, 1995.

These revisions establish a definition for the term ``annual,'' expand

Maryland's once-in, always-in provisions, and require an open burning

ban in Maryland's serious and severe ozone nonattainment areas during

the summer months. The intended effect of this action is to approve

these provisions into the Maryland SIP, in accordance with the SIP

submittal and revision provisions of the Act.

DATES: This final rule is effective April 28, 1997 unless within March

27, 1997, adverse or critical comments are received. If the effective

date is delayed, timely notice will be published in the Federal

Register.

ADDRESSES: Comments may be mailed to David L. Arnold, Chief, Ozone/CO

and Mobile Sources Section, Mailcode 3AT21, 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 and the Maryland Department of the Environment, 2500 Broening

Highway, Baltimore Maryland 21224.

FOR FURTHER INFORMATION CONTACT: Maria A. Pino, (215) 566-2181, at the

[[Page 8381]]

EPA Region III office address listed above, or via e-mail at

[email protected]. While information may be requested via e-

mail, comments must be submitted in writing to the above Region III

address.

SUPPLEMENTARY INFORMATION: On July 12, 1995, the Maryland Department of

the Environment (MDE) submitted amendments to its open fires regulation

to EPA as a State Implementation Plan (SIP) revision. This regulation

controls emissions of volatile organic compounds (VOCs) through a

seasonal ban on open burning in Maryland's serious and severe ozone

nonattainment areas. MDE submitted this SIP revision request pursuant

to the rate-of-progress (ROP) requirements of section 182 of the Clean

Air Act (the Act).

On July 17, 1995, MDE submitted amendments to its ``once-in,

always-in'' provisions to EPA as a SIP revision. These revisions expand

the applicability of Maryland's once-in, always-in provisions to

include VOC regulations triggered by applicability thresholds based on

a source's actual emissions. Also on July 17, 1995, MDE submitted a

definition for the term ``annual.'' This revision clarifies

applicability provisions for many Maryland VOC emission control

requirement provisions.

Summary of SIP Revision

State Submittal: Open Fires, COMAR 26.11.07

Maryland has amended COMAR 26.11.07 to institute a ban on open

burning during the peak ozone season in Maryland's severe and serious

ozone nonattainment areas. Maryland considers the months of June, July,

and August the peak ozone, because that is when ambient levels of ozone

in Maryland are usually the highest. The areas subject to this ban are

the Baltimore severe ozone nonattainment area (Baltimore City and Anne

Arundel, Baltimore, Carroll, Harford, and Howard Counties), the

Maryland portion of the Philadelphia severe ozone nonattainment area

(Cecil County), and the Maryland portion of the Washington, DC serious

ozone nonattainment area (Calvert, Charles, Frederick, Montgomery, and

Prince George's Counties). These revisions were adopted on May 1, 1995,

and effective on May 22, 1995.

The following open fires are not prohibited, as long as all

reasonable means are used to minimize smoke:

(1) For cooking of food on noncommercial property (cook outs);

(2) For recreational purposes (camp fires);

(3) For prevention of fire hazards that cannot be abated by any

other means;

(4) For the instruction of fire fighters or the testing of fire

fighter training systems fueled by propane or natural gas;

(5) For protection of health & safety when disposal of hazardous

waste is not possible by any other means;

(6) For burning pest infested crops or agricultural burning for

animal disease control;

(7) For good forest resource management practices;

(8) For the burning of excessive lodging for the purpose of re-

cropping; and

(9) For testing fire fighting training systems.

This ban is in effect during the ``peak ozone season''. During the

remainder of the year (September 1-May 31) Maryland's existing open

fire regulations apply. Current regulations require a permit to be

obtained before open burning can take place.

The program will be enforced through a coordinated effort between

Maryland Department of the Environment, local agencies and public

officials. There will also be a coordinated public awareness effort to

educate the public about the alternatives to open burning. The ban will

result in emission reductions of 13.28 tons per day (tpd) VOC. The ban

will also result in significant emission reductions of carbon monoxide

(CO), oxides of nitrogen (NOx), and toxics (carcinogenic

polycyclic materials).

In addition, Maryland has made the following administrative

amendments to COMAR 26.11.07.

(1) All references to Ringlemann Smoke Chart have been replaced by

references to opacity throughout this regulation.

(2) All references to ``Areas I-VI'' have been replaced by county

names throughout this regulation.

(3) All references to ``I.I.A waste type 0 and 1'' have been placed

with references to all ``ordinary household trash'' throughout this

regulation.

EPA Evaluation: Open Fires, COMAR 26.11.07

These revisions, which prohibit all but certain specific open

burning activities in Maryland's serious and severe ozone nonattainment

areas in the peak ozone season (June, July & August), will result in

significant enforceable VOC emission reductions. These reductions are

needed for Maryland's 15% plans.

State Submittal: Once-in, Always in, COMAR 26.11.19.02A(3)-(5)

These SIP revisions add a once-in, always-in provision for VOC

regulations triggered by applicability thresholds based on a source's

actual emissions (as opposed to potential emissions). These revisions

were adopted on April 7, 1995, and effective on May 8, 1995, and are

applicable statewide.

The once-in, always-in provision that is currently in Maryland's

SIP states that if a source is subject to the requirements of COMAR

26.11.19 (Maryland's category specific VOC regulations) because its

potential emissions exceed an applicability threshold, the source will

continue to be subject to the requirements, regardless of whether

future emissions are below the applicability threshold. Maryland has

expanded this provision to include exceedances of actual emissions

thresholds. Actual emissions since January 1, 1990 will be considered

in determining applicability.

EPA Evaluation: Once-in, Always in, COMAR 26.11.19.02A(3)-(5)

This revision will ensure that any new VOC requirements that have

applicability thresholds based on actual emissions are enforceable for

all sources that have exceeded the applicability threshold from January

1, 1990 into the future.

State Submittal: Definition of ``Annual'', COMAR 26.11.19.01B(1-1)

This SIP revision adds a definition for the term ``annual.'' This

revision was adopted on April 7, 1995, and effective on May 8, 1995,

and is applicable statewide.

Maryland has added a definition for the term ``annual.'' COMAR

26.11.19.01B(1-1) defines the term ``annual'' as meaning a calendar

year, unless otherwise specified.

EPA Evaluation: Definition of the Term ``Annual'', COMAR 26.11.19.01B

Many of Maryland's new VOC control measures, both Reasonably

Available Control Technology (RACT) regulations and other VOC control

measures needed for Maryland's 15% plans and other ROP requirements,

use the term ``annual'' in provisions for determining a facilities

applicability. This revision will clarify any applicability provisions

in COMAR 26.11.19 that use the term annual.

EPA is approving these SIP revisions 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 April 28, 1997

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unless, by March 27, 1997, 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 April 28, 1997.

Final Action

EPA is approving amendments to COMAR 26.11.07 as revisions to

Maryland's ozone SIP. These revisions, which institute a ban on open

burning during the peak ozone season in Maryland's severe and serious

ozone nonattainment areas, were submitted by Maryland on July 12, 1995.

EPA is also approving amendments to COMAR 26.11.19.02A(3)-(5) and COMAR

26.11.19.01B(1-1) as revisions to Maryland's ozone SIP. These

revisions, which add a definition for the term ``annual'' and add a

``once-in, always-in'' provision for VOC regulations triggered by

applicability thresholds based on a source's actual emissions, were

submitted by Maryland on July 17, 1995.

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.

Administrative Requirements

A. Executive Order 12866

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 a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

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 Regional

Administrator certifies that it does not have a significant impact on

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).

C. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

private sector, of $100 million or more. Under section 205, EPA must

select the most cost-effective and least burdensome alternative that

achieves the objectives of the rule and is consistent with statutory

requirements. Section 203 requires EPA to establish a plan for

informing and advising any small governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector. This Federal action approves pre-

existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

E. Petitions for Judicial Review

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

judicial review of this action, pertaining to revisions to COMAR

26.11.07, COMAR 26.11.19.02A(3)-(5), and COMAR 26.11.19.01B(1-1) of

Maryland's ozone SIP, must be filed in the United States Court of

Appeals for the appropriate circuit by April 28, 1997. Filing a

petition for reconsideration by the Regional 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, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Ozone,

Reporting and recordkeeping requirements.

Dated: January 31, 1997.

W. Michael McCabe,

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 paragraphs (c) (120) and

(121) to read as follows:

Sec. 52.1070 Identification of plan.

* * * * *

(c) * * *

(120) Revisions to the Maryland State Implementation Plan submitted

on July 12, 1995 by the Maryland Department of the Environment:

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(i) Incorporation by reference.

(A) Letter of July 12, 1995 from the Maryland Department of the

Environment transmitting additions, deletions, and revisions to

Maryland's State Implementation Plan, pertaining to volatile organic

compound regulations in Maryland's air quality regulations, Code of

Maryland Administrative Regulations (COMAR) 26.11.

(B) The following amendments to COMAR 26.11.07, pertaining to open

fires, adopted by the Secretary of the Environment on May 1, 1995,

effective May 22, 1995:

(1) the deletion of sections 26.11.07.01 A and B, definitions for

the terms ``hazardous material'' and ``I.I.A. standards.''

(2) addition of new section 26.11.07.01B, ``Terms Defined.''

(3) addition of new sections 26.11.07.01B(1) and (2), definitions

of the terms ``excessive lodging'' and ``forest resource management

practices.''

(4) renumbering of old sections 26.11.07.01C & D, now new sections

26.11.07.01B(3) & (4).

(5) amendments to section 26.11.07.02, pertaining to general

provisions.

(6) amendments to sections 26.11.07.03A, B, and B(1), pertaining to

open fires authorized by control officers.

(7) addition of new section 26.11.07.03C, ``Prohibition on Open

Burning.''

(8) amendments to section 26.11.07.04, pertaining to open fires

authorized by public officers, including the addition of new sections

(4)--(7).

(9) amendments to section 26.11.07.05, pertaining to open fires

allowed without authorization.

(ii) Additional material.

(A) Remainder of July 12, 1995 Maryland State submittal pertaining

to COMAR 26.11.19.07.

(121) Revisions to the Maryland State Implementation Plan submitted

on July 17, 1995 by the Maryland Department of the Environment:

(i) Incorporation by reference.

(A) Letter of July 12, 1995 from the Maryland Department of the

Environment transmitting additions, deletions, and revisions to

Maryland's State Implementation Plan, pertaining to volatile organic

compound regulations in Maryland's air quality regulations, Code of

Maryland Administrative Regulations (COMAR) 26.11.

(B) Amendments to COMAR 26.11.19.02A, pertaining to once-in,

always-in applicability provisions, consisting of revisions to COMAR

26.11.19.02A(3), and the addition of new COMAR 26.11.19.02A (4) and

(5), adopted by the Secretary of the Environment on April 7, 1995, and

effective on May 8, 1995.

(C) Amendments to COMAR 26.11.19.01B, consisting of the addition of

new COMAR 26.11.19.01B(1-1), the definition for the term ``annual,''

adopted by the Secretary of the Environment on April 7, 1995, effective

on May 8, 1995.

(ii) Additional material.

(A) Remainder of July 17, 1995 Maryland State submittal pertaining

to COMAR 26.11.19.02A(3)-(5) and COMAR 26.11.19.01B(1-1).

[FR Doc. 97-4524 Filed 2-24-97; 8:45 am]

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