[Federal Register Volume 66, Number 7 (Wednesday, January 10, 2001)]
[Rules and Regulations]
[Pages 1866-1868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-568]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MD104-3060; FRL-6920-9]


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

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 on April 27, 2000. This revision was 
submitted to satisfy EPA's regulation entitled, ``Finding of 
Significant Contribution and Rulemaking for Certain States in the Ozone 
Transport Assessment Group Region for Purposes of Reducing Regional 
Transport of Ozone,'' otherwise known as the ``NOX SIP 
Call.'' This revision establishes and requires a nitrogen oxides 
(NOX) allowance trading program for large electric 
generating and industrial units, and reductions for cement kilns and 
stationary industrial combustion engines, beginning in 2003. The 
intended effect of this action has two purposes. EPA is approving the 
Maryland's NOX Reduction and Trading Program because it 
meets the requirements of the NOX SIP Call that will 
significantly reduce ozone transport in the eastern United States. In 
addition, EPA is approving Maryland's NOX Reduction and 
Trading Program because it supports the one-hour attainment 
demonstration plans for the Baltimore, Metropolitan Washington, D.C. 
and Philadelphia-Wilmington-Trenton ozone nonattainment areas.

EFFECTIVE DATE: This final rule is effective on February 9, 2001.

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

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

SUPPLEMENTARY INFORMATION:

I. Background

    On April 27, 2000, the Maryland Department of the Environment (MDE) 
submitted a revision to its SIP to meet the requirements of the 
NOX SIP Call. The revision consists of the adoption of two 
new chapters COMAR 26.111.29-- NOX Reduction and Trading 
Program and COMAR 26.11.30--Policies and Procedure Relating to 
Maryland's NOX Reduction and Trading Program.
    On October 19, 2000 (65 FR 62671), EPA published a notice of 
proposed rulemaking (NPR) for the State of Maryland proposing to 
approve the April 27, 2000 SIP revision. That NPR provided for a public 
comment period ending on November 9, 2000. On November 9, 2000 (65 FR 
67319), EPA published a notice extending the comment period to November 
20, 2000. A detailed description of this SIP revision and EPA's 
rationale for approving it was provided in the October 19, 2000 NPR and 
will not be restated here. One letter of comment was submitted on EPA's 
proposal. A summary of the comments expressed in that letter and EPA's 
response is provided in section II, below.

II. Public Comments and EPA Response

    Comment: A letter of comment was submitted expressing concerns over 
the impact an expansion of the Baltimore/Washington International (BWI) 
Airport expansion would have on Maryland's ability to limit both 
emissions of NOX and volatile organic compounds (VOCs) 
sufficiently to meet the National Ambient Air Quality Standard for 
ozone. The commenter states his overarching concern that planned 
``growth'' in the Baltimore and Washington, DC areas from such projects 
as the expansion of BWI airport and the Ann Arundel Mills Mall is 
occurring at a rate such that compliance with the Maryland's program to 
satisfy the NOX SIP call could be jeopardized. The commenter 
expresses concerns that although Maryland is ``required'' to abide by a 
regional cap and trade program that is intended to significantly reduce 
NOX emissions generated within the Ozone Transport Region, 
that effort will fail unless the impact of the BWI airport is properly 
documented to include the cumulative impact of the airport's 
NOX emissions, due to cars, buses, transport vehicles, 
maintenance facilities, rental cars, and aircraft.
    Response: The commenter is correct that VOC and NOX 
emissions resulting from growth in the Baltimore and Washington DC 
areas from projects such as BWI airport and the Ann Arundel Mills Mall 
must be considered by the State of Maryland in meeting its requirements 
under the Clean Air Act for attainment and maintenance of the NAAQS for 
ozone. Increases in both NOX and VOC emissions from such 
projects must be demonstrated to conform to plans and provisions of the 
Maryland SIP established to accommodate such ``growth.'' Approval of 
Maryland's regulations and requirements to satisfy the NOX 
SIP call in no way relieves the State from the applicable requirements 
and obligations under the Clean Air Act's transportation and general 
conformity provisions. In determining the appropriate control levels, 
the NOX SIP Call rulemaking assumed certain amounts of 
growth from all source categories. The comment seems to imply that EPA 
was not cognizant of growth, any such implication is incorrect. 
Moreover, the requirements of the NOX SIP Call and 
Maryland's SIP will be satisfied if the sources subject to controls 
implement those controls, and if the emissions cap applicable to 
electric generating units (EGUs) is adhered to. Under the federal 
NOX SIP Call, states were allowed the flexibility to decide 
what sources of emissions to control to achieve the required reductions 
in NOX. EPA did provide information that those reductions 
could be achieved in the most cost effective manner by controlling 
large stationary sources. EPA finds that Maryland's NOX 
Reduction and Trading Program meets the requirements of the 
NOX SIP Call. However, neither the federal NOX 
SIP Call rule nor Maryland's Program to satisfy that rule alters either 
of the mandated conformity programs' requirements. Moreover, while the 
NOX SIP Call rule specifically establishes

[[Page 1867]]

requirements to reduce NOX emissions, the transportation and 
general conformity provisions of the Clean Act require that both 
NOX and VOC emissions increases be accounted for and conform 
with a state's plan(s) to attain and maintain the NAAQS for ozone. For 
these reasons, EPA believes that approval of Maryland's regulations and 
requirements to satisfy the NOX SIP call strengthens the SIP 
and does not alter or make less stringent the State's obligation to 
meet the conformity requirements of the Clean Air Act and its SIP.

II. Final Action

    EPA is approving the Maryland's SIP revision consisting of its 
NOX Reduction and Trading Program, which was submitted on 
April 27, 2000. EPA finds that Maryland's submittal is fully approvable 
because it meets the requirements of the NOX SIP Call. In 
addition, EPA is approving Maryland's NOX Reduction and 
Trading Program because it supports the one-hour attainment 
demonstration plans for the Baltimore, Metropolitan Washington, DC and 
Philadelphia-Wilmington-Trenton ozone nonattainment areas.

III. Administrative Requirements

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this 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 approves 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 (Publ. L. 104-4). For the same reason, this 
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 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 approves 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 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 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 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.).

B. 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).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by March 12, 2001. 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 to approve Maryland's NOX 
Reduction and Trading Program 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: December 14, 2000.
Bradley M. Campbell,
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 paragraphs (c)(154) to read 
as follows:


Sec. 52.1070  Identification of plan.

* * * * *
    (c) * * *
    (154) Revisions to the Maryland Regulations pertaining to the 
Nitrogen Oxides (NOX) Reduction and Trading Program 
submitted on April 27, 2000 by the Maryland Department of the 
Environment:
    (i) Incorporation by reference.
    (A) Letter of April 27, 2000 from the Maryland Department of the 
Environment transmitting additions to the Maryland State Implementation 
Plan pertaining to the NOX Reduction and Trading Program.
    (B) Revisions to COMAR 26.11.29, NOX Reduction and 
Trading Program and COMAR 26.11.30, Policies and Procedures Relating to 
Maryland's NOX Reduction and Trading Program, effective May 
1, 2000.
    (1) Addition of COMAR 26.11.29.01 through COMAR 26.11.29.15.
    (2) Addition of COMAR 26.11.30.01 through COMAR 26.11.30.09.

[[Page 1868]]

    (ii) Additional material. Remainder of April 27, 2000 submittal 
pertaining to the NOX Reduction and Trading Program.
[FR Doc. 01-568 Filed 1-9-01; 8:45 am]
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