Approval and Promulgation of Air Quality Implementation Plans; Maryland; Reasonably Available Control Technology Requirements for Major Sources of Nitrogen Oxides

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MD 027-3038; FRL-6363-2]

Approval and Promulgation of Air Quality Implementation Plans;

Maryland; Reasonably Available Control Technology Requirements for

Major Sources of Nitrogen Oxides

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is granting conditional limited approval of a State

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Implementation Plan (SIP) revision submitted by the State of Maryland.

This revision establishes and requires all major sources of nitrogen

oxides (NOX) to implement reasonably available control

technology (RACT). This revision was submitted to comply with the

NOX requirements of the Clean Air Act (the Act). Also,

Maryland's regulations are being revised by adding and amending

definitions. The intended effect of this action is to grant conditional

limited approval of Maryland's NOX RACT regulation and to

approve the new and revised definitions submitted by the State of

Maryland.

EFFECTIVE DATE: This final rule is effective on July 22, 1999.

ADDRESSES: Copies of the documents relevant to this action are

available for public inspection during normal business hours at the Air

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

1650 Arch Street, Philadelphia, Pennsylvania 19103; the Air and

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

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

of the Environment, 2500 Broening Highway, Baltimore, Maryland, 21224.

FOR FURTHER INFORMATION CONTACT: Carolyn M. Donahue, (215) 814-2095, or

by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

On February 18, 1999 (64 FR 8034), EPA published a notice of

proposed rulemaking (NPR) for the State of Maryland. The NPR proposed

conditional limited approval of Maryland's NOX RACT rule,

Code of Maryland Regulations (COMAR) 26.11.09.08. The formal SIP

revision was submitted by the Maryland Department of the Environment on

June 8, 1993 and amended on July 11, 1995.

Also submitted with the NOX RACT rule were amendments to

COMAR 26.11.09.01 and 26.11.01.01, revising the definition of ``fuel

burning equipment'' and adding definitions for the terms ``annual

combustion analysis,'' ``space heater,'' and ``system'' used in COMAR

26.11.09.08. EPA is fully approving these amendments. Other specific

requirements of Maryland's NOX RACT rule and the rationale

for EPA's proposed action are explained in the NPR and will not be

restated here.

II. Comments Received on EPA's Notice of Proposed Rulemaking

EPA received three letters in response to the February 18, 1999

NPR, all making the same comment. The following discussion summarizes

and responds to the comment received.

Comment 1: The commenters oppose submittal of COMAR 26.11.01.11 for

inclusion in the Maryland SIP to satisfy the reporting and

recordkeeping requirements of Maryland's NOX RACT rule. The

commenters stated that inclusion of this regulation would cause

consequences beyond that of using continuous emissions monitoring (CEM)

as a NOX measurement tool. The comment also stated that

COMAR 26.11.01.11 should be considered for inclusion in the SIP on its

own merits, and the effort to include it ``should initiate at the State

level.''

Response 1: In the State's NOX RACT rule, Maryland

established that the monitoring requirements for NOX

facilities would be those set forth in COMAR 26.11.01.10 and .11. COMAR

26.11.01.10 has been approved into the Maryland SIP; however, COMAR

26.11.01.11 has never been submitted to EPA for approval. Maryland's

NOX RACT rule will be federally enforceable only if the

regulations cited by this rule are themselves federally enforceable. As

pointed out in the second condition in the NPR, EPA left it to the

State to decide whether or not to initiate efforts to include COMAR

26.11.01.11 in the SIP. The second condition in the NPR stated that

Maryland may submit COMAR 26.11.01.11 or revise the rule to explain the

reporting requirements. Maryland is currently in the process of

revising its NOX RACT rule to address the NOX

monitoring requirements and satisfy this condition.

Terms of Conditional Approval

EPA cannot grant full approval of Maryland's NOX RACT

rule because not every major NOX source is covered by the

presumptive limits in Sec. C or RACT provisions in Secs. H and J.

Maryland has the option to submit individual RACT determinations as SIP

revisions, thus the RACT rule will not be approvable until all of its

components are approvable. Therefore, EPA is conditionally approving

Maryland's NOX RACT regulations, based on the State's

commitment to submit for approval into the SIP, the case-by-case RACT

proposals for all sources subject to RACT requirements currently known

to MDE. Maryland submitted this commitment in a letter to EPA, dated

October 29, 1998.

To fulfill the condition of this approval the State of Maryland

must, within 12 months of the effective date of this rulemaking:

1. Certify that it has submitted case-by-case RACT SIPs for all

sources subject to the RACT requirements currently known to the

Department, or demonstrate that the emissions from any remaining

subject sources represent a de minimis level of emissions;

2. Either submit COMAR 26.11.01.11 to EPA for approval, or revise

Sec. F to clearly explain the reporting and record keeping requirements

in COMAR 26.11.09.08;

3. Change COMAR 26.11.09.08D to unambiguously require all emissions

trading plans and proposals be submitted as individual SIP revisions,

or meet all the requirements of a discretionary EIP.

Once EPA has determined that the State has met these conditions,

EPA shall remove the conditional nature of its approval and the

Maryland NOX regulation SIP revision will, at that time,

retain limited approval status. Should the State fail to meet the

conditions specified above, the final conditional limited approval of

the Maryland NOX RACT regulation SIP revision shall convert

to a disapproval.

Terms of Limited Approval

While EPA does not believe that the Maryland generic NOX

RACT regulation satisfies the Act's RACT requirements as discussed

previously in this notice, EPA is also granting limited approval of the

Maryland generic RACT regulation on the basis that it strengthens the

Maryland SIP. After Maryland has fulfilled the conditions of this rule

and once EPA has approved all of the case-by-case RACT proposals as SIP

revisions, the limited approval will convert to full approval.

III. Final Action

EPA is granting conditional limited approval to Maryland's

NOX RACT rule, COMAR 26.11.09.08, as a revision to the

Maryland SIP, and is approving amendments to COMAR 26.11.01.01.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from review under E.O. 12866, entitled ``Regulatory

Planning and Review.''

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government,

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unless the Federal government provides the funds necessary to pay the

direct compliance costs incurred by those governments. If EPA complies

by consulting, E.O. requires EPA to provide to the Office of Management

and Budget a description of the extent of EPA's prior consultation with

representatives of affected state, local, and tribal governments, the

nature of their concerns, copies of written communications from the

governments, and a statement supporting the need to issue the

regulation. In addition, E.O. 12875 requires EPA to develop an

effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.'' Today's rule does not

create a mandate on state, local or tribal governments. The rule does

not impose any enforceable duties on these entities. Accordingly, the

requirements of section 1(a) of E.O. 12875 do not apply to this rule.

C. Executive Order 13045

E.O. 13045, entitled ``Protection of Children from Environmental

Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies

to any rule that the EPA determines (1) is ``economically

significant,'' as defined under E.O. 12866, and (2) the environmental

health or safety risk addressed by the rule has a disproportionate

effect on children. If the regulatory action meets both criteria, the

Agency must evaluate the environmental health or safety effects of the

planned rule on children and explain why the planned regulation is

preferable to other potentially effective and reasonably feasible

alternatives considered by the Agency.

This final rule is not subject to E.O. 13045 because it is not an

economically significant regulatory action as defined by E.O. 12866,

and it does not address an environmental health or safety risk that

would have a disproportionate effect on children.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments. If EPA complies by

consulting, Executive Order 13084 requires EPA to provide to the Office

of Management and Budget, in a separately identified section of the

preamble to the rule, a description of the extent of EPA's prior

consultation with representatives of affected tribal governments, a

summary of the nature of their concerns, and a statement supporting the

need to issue the regulation. In addition, Executive Order 13084

requires EPA to develop an effective process permitting elected and

other representatives of Indian tribal governments ``to provide

meaningful and timely input in the development of regulatory policies

on matters that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the communities

of Indian tribal governments. This action does not involve or impose

any requirements that affect Indian Tribes. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because conditional and limited

approvals of SIP submittals under sections 110 and 301, and subchapter

I, part D of the 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,

EPA 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 Clean Air Act, 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. versus

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

If the conditional approval is converted to a disapproval under

section 110(k), based on the State's failure to meet the commitment, it

will not affect any existing state requirements applicable to small

entities. Federal disapproval of the state submittal does not affect

its state-enforceability. Moreover, EPA's disapproval of the submittal

does not impose a new Federal requirement. Therefore, EPA certifies

that this disapproval action does not have a significant impact on a

substantial number of small entities because it does not remove

existing requirements nor does it substitute a new federal requirement.

F. 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

annual 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 annual 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.

G. 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 rule 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. This rule is not a

``major rule'' as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

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

judicial review of this action, pertaining to Maryland's

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generic NOX RACT regulation, must be filed in the United

States Court of Appeals for the appropriate circuit by August 23, 1999.

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, Incorporation by

reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping

requirements.

Dated: June 2, 1999.

Thomas Maslany,

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 et seq.

Subpart V--Maryland

2. Section 52.1070 is amended by adding paragraph (c)(143) to read

as follows:

Sec. 52.1070 Identification of plan.

* * * * *

(c) * * *

(143) Revisions to the Code of Maryland Air Regulations (COMAR)

26.11.01.01 and 26.11.09.01, and limited approval of revisions to COMAR

26.11.09.08, submitted on June 8, 1993 and July 11, 1995 by the

Maryland Department of the Environment:

(i) Incorporation by reference.

(A) Letter of June 8, 1993 from the Maryland Department of the

Environment transmitting COMAR 26.11.09.08, Control of NOX

Emissions from Major Stationary Sources and amendments to COMAR

26.11.09.01, Definitions.

(B) COMAR 26.11.09.08, Control of NOX Emissions from

Major Stationary Sources, effective on May 10, 1993, replacing the

existing COMAR 26.11.09.08.

(C) Amendment to COMAR 26.11.09.01, Definitions, effective on May

10, 1993.

(D) Letter of July 11, 1995 from the Maryland Department of the

Environment transmitting amendments to COMAR 26.11.09.08, Control of

NOX Emissions from Major Stationary Sources, amendments to

COMAR 26.11.01.01, Definitions and COMAR 26.11.09.01, Definitions.

(E) Amendments to COMAR 26.11.09.08, Control of NOX

Emissions from Major Stationary Sources, effective on June 20, 1994 and

May 8, 1995.

(F) Amendment to COMAR 26.11.01.01, Definitions, effective on June

20, 1994.

(G) Amendments to COMAR 26.11.09.01, Definitions, effective on June

20, 1994 and on May 8, 1995.

(ii) Additional material.

(A) Remainder of June 8, 1993 and July 11, 1995 State submittals.

(B) Letter of October 29, 1998 from the Maryland Department of the

Environment agreeing to meet certain conditions by no later than 12

months after July 22, 1999.

3. Section 52.1072 is amended by adding paragraph (e) to read as

follows:

Sec. 52.1072 Conditional approval.

* * * * *

(e) Revisions to the Code of Maryland Air Regulations (COMAR), rule

26.11.09.08, pertaining to NOX RACT submitted on June 8,

1993 and amended on July 11, 1995 by the Maryland Department of the

Environment, is conditionally approved based on certain contingencies.

Maryland must meet the following conditions by no later than 12 months

after July 22, 1999. These conditions are that Maryland must:

(1) Certify that it has submitted case-by-case RACT SIPs for all

sources subject to the RACT requirements currently known to the

Department, or demonstrate that the emissions from any remaining

subject sources represent a de minimis level of emissions;

(2) Either submit COMAR 26.11.01.11 to EPA for approval, or revise

COMAR 26.11.09.08F to clearly explain the reporting and record keeping

requirements in COMAR 26.11.09.08;

(3) Change COMAR 26.11.09.08D to unambiguously require all

emissions trading plans and proposals be submitted as individual SIP

revisions, or meet all the requirements of a discretionary EIP.

[FR Doc. 99-15713 Filed 6-21-99; 8:45 am]

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