[Federal Register Volume 64, Number 119 (Tuesday, June 22, 1999)]
[Rules and Regulations]
[Pages 33197-33200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15713]


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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

[[Page 33198]]

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,

[[Page 33199]]

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

[[Page 33200]]

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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