[Federal Register Volume 65, Number 203 (Thursday, October 19, 2000)]
[Proposed Rules]
[Pages 62677-62679]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-26902]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MD 096-3053; FRL-6887-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; Nitrogen Oxides Budget Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the State of Maryland. The revision consists of 
amendments to Maryland's Nitrogen Oxides ( NOX) Budget 
Program. The revisions implement the Ozone Transport Commission's (OTC) 
September 27, 1994 Memorandum of Understanding (MOU) in Maryland. In 
accordance with the MOU, the revisions implement the Maryland portion 
of a regional NOX cap and trade program that significantly 
reduces NOX emissions generated within the Ozone Transport 
Region (OTR). EPA is approving these revisions in accordance with the 
requirements of the Clean Air Act.

DATES: Written comments must be received on or before November 9, 2000.

ADDRESSES: Written comments may be mailed to David L. Arnold, Chief, 
Ozone & Mobile Sources Branch, Mailcode 3AP21, U.S. EPA, Region III, 
1650 Arch Street, Philadelphia, PA 19103. Copies of the documents 
relevant to this action are available for public inspection during 
normal business hours at the Air Protection Division, EPA, Region III, 
1650 Arch Street, Philadelphia, PA 19103 and Maryland Department of the 
Environment, 2500 Broening Highway, Baltimore, MD, 21224.

FOR FURTHER INFORMATION CONTACT: Cristina Fernandez, (215) 814-2178, or 
by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

Background

    On August 28,1998, the Maryland Department of the Environment (MDE) 
submitted a revision to its SIP. The revision to the SIP includes the 
adoption of new sections .01-.14 under a new chapter, COMAR 26.11.27--
Post RACT Requirements for NOX Sources (Nitrogen Oxides ( 
NOX) Budget Program) and new sections .01-.13 under a new 
chapter, COMAR 26.11.28--Polices and Procedures Relating to Maryland's 
NOX Budget Program. On November 16, 1999 and

[[Page 62678]]

March 20, 2000, Maryland submitted amendments to its August 28, 1998 
SIP revision request.
    The Maryland's NOX Budget Program regulations are part 
of a regional NOX reduction program based upon an MOU drawn 
between the member states of the OTC. The OTC adopted a MOU on 
September 27, 1994, committing the signatory states to the development 
and implementation of a two phase region-wide reduction in 
NOX emissions by 1999 and 2003, respectively. As reasonably 
available control technology (RACT) to reduce NOX emissions 
was required to be implemented by May of 1995, the MOU refers to the 
reduction in NOX emissions to be achieved by 1999 as Phase 
II; and the reduction in NOX emissions to be achieved by 
2003 as Phase III. The OTC member states include Maine, New Hampshire, 
Vermont, Massachusetts, Connecticut, Rhode Island, New York, New 
Jersey, Pennsylvania, Maryland, Delaware, the northern counties of 
Virginia, and the District of Columbia. All of the OTC members, with 
the exception of the Commonwealth of Virginia, signed the September 27, 
1994 MOU. The OTC MOU requires a reduction in ozone season 
NOX emissions from utility and large industrial combustion 
facilities within the OTR to further the effort to achieve the health-
based National Ambient Air Quality Standard (NAAQS) for ozone. In the 
MOU, the OTC states agreed to propose regulations for the control of 
NOX emissions in accordance with the following guidelines:
    1. The level of NOX required would be established from a 
1990 baseline emissions level.
    2. The reduction would vary by location, or zone, and would be 
implemented in two phases utilizing a region wide trading program.
    3. The reduction would be determined based on the less stringent of 
each of the following:
    a. By May 1, 1999, the affected facilities in the inner zone shall 
reduce their rate of NOX emissions by 65% from baseline, or 
emit NOX at a rate no greater than 0.20 pounds per million 
Btu. (This is a Phase II requirement.)
    b. By May 1, 1999, the affected facilities in the outer zone shall 
reduce their rate of NOX emissions by 55% from baseline, or 
shall emit NOX at a rate no greater than 0.20 pounds per 
million Btu. (This is a Phase II requirement.)
    c. By May 1, 2003, the affected facilities in the inner and outer 
zones shall reduce their rate of NOX emissions by 75% from 
baseline, or shall emit NOX at a rate no greater than 0.15 
pounds per million Btu. (This is a Phase III requirement.)
    d. By May 1, 2003, the affected facilities in the Northern zone 
shall reduce their rate of NOX emissions by 55% from 
baseline, or shall emit NOX at a rate no greater than 0.20 
pounds per million Btu. (This is a Phase III requirement.)
    A Task Force of representatives from the OTC states, organized 
through the Northeast States for Coordinated Air Use Management 
(NESCAUM) and the Mid-Atlantic Regional Air Management Association 
(MARAMA), was charged with the task of developing a Model Rule that 
would implement the program defined by the OTC MOU. During 1995 and 
1996, the NESCAUM/ MARAMA NOX Budget Task Force worked with 
EPA and developed a model rule as a template for OTC states to adopt 
their own rules to implement the OTC MOU. The model was issued May 1, 
1996. The model rule was developed by and for the OTC states to 
implement the Phase II reductions called for in the MOU to be achieved 
by May 1, 1999. The model rule does not include the implementation of 
Phase III.

Summary of SIP Revision

    Maryland's regulations of COMAR 26.11.27, Post RACT Requirements 
for NOX Sources ( NOX Budget Program) and COMAR 
26.11.28, Polices and Procedures Relating to Maryland's NOX 
Budget Program are based solely upon the ``NESCAUM/MARAMA 
NOX Budget Rule'' issued in May 1, 1996. The model rule was 
developed by the states in the OTR using the EPA's economic incentive 
rules (67 FR 16690) which were published on April 7, 1994, as the 
general regulatory framework.
    On August 28, 1998, Maryland submitted a revision to its SIP. The 
revision consists of amendments to COMAR 26.11.27, Post RACT 
Requirements for NOX Sources (NOX Budget Program) 
and COMAR 26.11.28, Polices and Procedures Relating to Maryland's 
NOX Budget Program. Post RACT Requirements for 
NOX Sources, COMAR 26.11.27, is divided in fourteen 
sections: (.01) Definitions; (.02) Incorporation by Reference; (.03) 
Applicability; (.04) General Requirements; (.05) Allowance Allocations; 
(.06) Identification of Authorized Account Representatives; (.07) 
Allowance Banking; (.08) Emission Monitoring; (.09) Reporting; (.10) 
Record Keeping; (.11) End-of-Season Reconciliation; (.12) Compliance 
Certification; (.13) Penalties; (.14) Audit. Polices and Procedures 
Relating to Maryland's NOX Budget Program, COMAR 26.11.28, 
is divided in thirteen sections: (.01) Scope; (.02) Definitions; (.03) 
Procedures Relating to Compliance Accounts; (.04) Procedures Relating 
to General Accounts; (.05) Allowance Banking, (.06) Allowance Transfer; 
(.07) Emissions Monitoring; (.08) Early Reduction Allowances; (.09) 
Opt-in Procedures; (.10) Audit Provisions; (.11) Allocations to Units 
in Operation in 1990; (.12) Allocations to Budget Sources Beginning 
Operation or for Which a Permit Was Issued After 1990 and Before 
January 1, 1998; (.13) Percent Contribution of Budget by Company.
    On November 16, 1999, MDE submitted amendments to its August 28, 
1998 SIP revision request. The purpose of these amendments is to change 
the compliance date of the Maryland NOX Budget Program from 
May 1, 1999 to May 1, 2000. The revisions to the August 28, 1998 
submittal include amendments to Regulations (.04) General Requirements, 
(.07) Allowance Banking, and (.11) End-of-Season Reconciliation under 
COMAR 26.11.27 and the repeal of Regulation (.08) Early Reduction 
Allowances under COMAR 26.11.28.
    On March 20, 2000, MDE submitted amendments to its August 28, 1998 
SIP revision request consisting of two enforceable consent agreements 
between MDE and the Baltimore Gas and Electric Company and the Potomac 
Electric Power Company. These consent agreements impose special 
conditions and time lines for both companies regarding the 
implementation of Maryland's NOX Budget Trading Program 
requirements. A more detailed description of Maryland's NOX 
Budget Trading Program requirements, the two consent agreements and 
EPA's rationale for approving them as a SIP revision are provided in 
the Technical Support Document (TSD) prepared for this rule. Copies of 
the TSD are available upon request from the EPA Regional office listed 
in the ADDRESSES section of this document.

Proposed Action

    EPA is proposing to approve a revision to the Maryland SIP 
consisting of COMAR 26.11.27, Post RACT Requirements for NOX 
Sources (NOX Budget Program) and COMAR 26.11.28, Polices and 
Procedures Relating to Maryland's NOX Budget Program, as 
submitted on August 28, 1998 and as amended on November 16, 1999 and 
March 20, 2000. These revisions implement Maryland's portion of Phase 
II of the OTC's MOU to reduce nitrogen oxides.
    Written comments must be received on or before November 9, 2000. 
EPA calls your attention to the November 9,

[[Page 62679]]

2000 deadline date for submittal of comments on this proposed action to 
approve this SIP revision submitted by the State of Maryland. The EPA 
is providing a shortened time period for comment for two reasons. As an 
initial matter, this revision is non-controversial and EPA does not 
expect comment as Maryland's OTC NOX Budget Program is based 
upon the model rule developed by the NESCAUM and MARAMA states. The two 
enforceable consent agreements between MDE and the Baltimore Gas and 
Electric Company and the Potomac Electric Power Company are source-
specific and affect no other facilities. Moreover, this SIP revision is 
necessary for full approval of the attainment demonstration SIP for the 
Metropolitan Washington, D.C. ozone nonattainment area. The EPA is 
currently under an obligation to complete rulemaking by November 15, 
2000 fully approving the attainment demonstration for the Metropolitan 
Washington, D.C. ozone nonattainment area or, in the alternative, 
proposing a federal implementation plan.

Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. This action merely proposes to approve state law as meeting 
federal requirements and imposes no additional requirements beyond 
those imposed by state law. Accordingly, the Administrator certifies 
that this proposed rule will not have a significant economic impact on 
a substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any 
additional enforceable duty beyond that required by state law, it does 
not contain any unfunded mandate or significantly or uniquely affect 
small governments, as described in the Unfunded Mandates Reform Act of 
1995 (Public Law 104-4). For the same reason, this proposed rule also 
does not significantly or uniquely affect the communities of tribal 
governments, as specified by Executive Order 13084 (63 FR 27655, May 
10, 1998). This proposed rule will not have substantial direct effects 
on the States, on the relationship between the national government and 
the States, or on the distribution of power and responsibilities among 
the various levels of government, as specified in Executive Order 13132 
(64 FR 43255, August 10, 1999), because it merely proposes to approve a 
state rule implementing a federal standard, and does not alter the 
relationship or the distribution of power and responsibilities 
established in the Clean Air Act. This proposed rule also is not 
subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because 
it is not economically significant. In reviewing SIP submissions, EPA's 
role is to approve state choices, provided that they meet the criteria 
of the Clean Air Act. In this context, in the absence of a prior 
existing requirement for the State to use voluntary consensus standards 
(VCS), EPA has no authority to disapprove a SIP submission for failure 
to use VCS. It would thus be inconsistent with applicable law for EPA, 
when it reviews a SIP submission, to use VCS in place of a SIP 
submission that otherwise satisfies the provisions of the Clean Air 
Act. Thus, the requirements of section 12(d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. 
As required by section 3 of Executive Order 12988 (61 FR 4729, February 
7, 1996), in issuing this proposed rule, EPA has taken the necessary 
steps to eliminate drafting errors and ambiguity, minimize potential 
litigation, and provide a clear legal standard for affected conduct. 
EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 
1988) by examining the takings implications of the rule in accordance 
with the ``Attorney General's Supplemental Guidelines for the 
Evaluation of Risk and Avoidance of Unanticipated Takings' issued under 
the executive order. This action to propose approval of Maryland 
NOX Budget Program rule does not impose an information 
collection burden under the provisions of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen dioxide, 
Ozone, Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: October 13, 2000.
Thomas Voltaggio,
Acting Regional Administrator, Region III.
[FR Doc. 00-26902 Filed 10-18-00; 8:45 am]
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