[Federal Register Volume 66, Number 27 (Thursday, February 8, 2001)]
[Rules and Regulations]
[Pages 9522-9527]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-3161]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MD106-3063; FRL-6922-7]


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

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. This revision requires major 
sources of nitrogen oxides (NOX) in the State of Maryland to 
implement reasonably available control technology (RACT).

[[Page 9523]]

This action is being taken in accordance with the Clean Air Act.

EFFECTIVE DATE: This final rule is effective on March 12, 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: Kelly L. Bunker, (215) 814-2177 or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Pursuant to sections 182(b)(2) and 182(f) of the Clean Air Act 
(CAA), Maryland is required to implement RACT for all major 
NOX sources by no later than May 31, 1995. The definition of 
a major source is determined by its size, location, the classification 
of that area and whether it is located in the ozone transport region 
(OTR), which is established by the CAA. The entire State of Maryland is 
included in the OTR. The Baltimore nonattainment area and Cecil County 
are classified as severe nonattainment areas. Calvert, Charles, 
Frederick, Montgomery and Prince George's Counties are classified as 
serious ozone nonattainment areas. The remaining counties in Maryland 
are classified as marginal or in attainment. However, under section 184 
of the CAA, at a minimum, moderate area requirements for stationary 
sources, including RACT as specified in sections 182(b)(2) and 182(f), 
apply throughout the OTR. Therefore, RACT is applicable statewide in 
Maryland. Section 182 of the Act defines a major NOX source 
as one that emits or has the potential to emit 25 or more tons of 
NOX per year (TPY) in any ozone nonattainment area 
classified as severe, or 50 or more TPY located in any ozone 
nonattainment area classified as serious. For any area in the OTR 
classified as attainment or marginal nonattainment, sections 182 and 
184 of the Act define a major stationary source of NOX as 
one that emits or has the potential to emit 100 or more TPY.
    On July 11, 1995, the Maryland Department of the Environment (MDE) 
submitted a revision to its State Implementation Plan (SIP) for the 
control of NOX emissions from major sources. This submittal 
included revisions to regulation COMAR 26.11.09.01 and 26.11.09.08 
which pertained to definitions and a ``generic'' NOX RACT 
rule. This generic rule required affected sources to either meet a 
presumptive NOX emissions standard or to submit a ``case-by-
case'' RACT proposal for approval by MDE. In all cases, under this 
regulation, RACT requirements were to have been met by no later than 
May 31, 1995. On June 22, 1999 (64 FR 33197), EPA granted conditional 
limited approval of this SIP revision. Under EPA's conditional limited 
approval, each case-by-case RACT determination was to have been 
submitted to EPA as a SIP revision. Many sources in Maryland invoked 
the provisions of the generic rule, submitted case-by-case RACT 
determinations and complied with them by May 31, 1995. However, the 
State of Maryland found that to meet EPA's condition by processing 
these numerous case-by-case RACT determinations as SIP revisions to be 
unduly burdensome. Therefore, on September 8, 2000, Maryland submitted 
a SIP revision. It consisted of a revised version of COMAR 26.11.09.08 
which removed the ``generic'' RACT provisions and replaced them with 
source category specific RACT emission limitations. The submittal of 
the September 8, 2000, SIP revision satisfies the conditions of EPA's 
June 22, 1999 conditional limited approval. Maryland first revised 
COMAR 26.11.09.08 on September 22, 1999 and further revised it on 
August 30, 2000. These revisions to COMAR 26.11.09.08 became effective 
in the State of Maryland on October 18, 1999, and September 18, 2000, 
respectively. Its provisions are to be complied with at all times and 
it provides no extension of the CAA mandated RACT compliance date of 
May 31, 1995.
    The September 8, 2000, SIP revision is the subject of this action. 
The September 8, 2000, submittal included the new version of 
regulation, COMAR 26.11.09.08, which requires major sources of 
NOX throughout the entire State of Maryland to comply with 
RACT requirements, and which adds the definition for the term ``high 
heat release unit'' to COMAR 26.11.09.01.
    On October 19, 2000 (65 FR 62668), EPA published a notice of 
proposed rulemaking (NPR) for the Maryland NOX RACT 
regulations proposing to approve the September 8, 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. Other specific 
requirements of Maryland's NOX RACT regulation and the 
rationale for EPA's action are explained in the NPR and will not be 
restated here.

II. Public Comments and Response

    Pursuant to its October 19, 2000 NPR, EPA received one letter of 
comment from the EarthJustice Legal Defense Fund. A summary of 
EarthJustice's comments and EPA's responses are provided below.
    Comment: The commenter asserts that the State's and EPA's technical 
support documents (TSDs) fail to justify the RACT determinations made 
for each source category because the TSDs lack an analysis which 
examines available NOX controls used in Maryland and 
elsewhere and selects one or more technologies that provide the lowest 
emission limitation reasonably available considering technological and 
economic feasibility.
    Response: EPA disagrees with the commenter. The State of Maryland's 
submittal includes two TSDs, one dated June 30, 1999 and a revised TSD 
dated August 3, 2000. These TSDs explain the background of the former 
case-by-case generic rule and the rationale for its evolution to a 
regulation that imposes source category specific RACT requirements for 
major sources of NOX. They also contain an explanation for 
the RACT requirements selected for each source category. Moreover, the 
preamble of Notice of Proposed Action published in the Maryland 
Register (Vol. 26, Issue 15, Friday, July 16, 1999) states that the 
source category specific RACT standards are, in many cases, based upon 
the information developed by the subject sources as part of the earlier 
case-by-case process. Many of these source-specific RACT determinations 
submitted to the Maryland Department of the Environment contain 
detailed analyses for their RACT determinations. Those submittals were 
reviewed and commented upon by both the Maryland Department of the 
Environment (MDE) and EPA. They are referenced in Maryland's rulemaking 
notices amending COMAR 26.11.09.08, which were made available for 
public inspection during the State's public comment periods on the 
revisions to COMAR 26.11.09.08 at MDE's offices in Baltimore, Maryland. 
With regard to the comments made about EPA's TSD in support of its 
rulemaking, EPA believes it has fulfilled its obligations. EPA did not 
attempt to complete a new and independent RACT analysis for the sources 
to which this rulemaking pertains. However, EPA did review the RACT 
provisions of Maryland's revised regulation to determine if the RACT 
requirements appeared to be reasonable

[[Page 9524]]

and consistent with RACT requirements for similar sources and source-
categories.
    Comment: The commenter asserts that the State's RACT emission 
limits for electric generating units is much higher than the OTC Phase 
II emission limits, which is the less stringent of 0.2 lb/MMBtu or a 
65% reduction. EPA estimates that the Phase II reductions will be 
achieved at a cost of $1,600 per ton--well below the $2,500 benchmark 
used by the State. The commenter contends that EPA cannot approve the 
State's emission limits as RACT when lower limits are achievable at 
costs consistent with RACT.
    Response: EPA disagrees with the commenter that Maryland must, in 
effect, declare that the Phase II emission limits of the OTC's 
Memorandum of Agreement (MOU) are needed to comply with RACT 
requirements for controlling NOX from electric generating 
units in Maryland. The compliance date for RACT is and remains May 31, 
1995. The model rule developed by the OTC to implement Phase II of its 
MOU calls for compliance by May 1, 1999. Simply because Maryland has 
revised its previously SIP-approved NOX RACT rule to include 
category specific RACT limits to avoid the need to process case-by-case 
RACT determinations as SIP revisions in no way provides for the State 
to grant a compliance date extension or requires that it redefine RACT 
as it may otherwise be determined were the compliance date May 1, 1999 
instead of May 31, 1995.
    Moreover, on October 19, 2000, the very same day as EPA proposed 
approval of Maryland's September 8, 2000 SIP revision to amend its 
NOX RACT rule, EPA also proposed approval of Maryland's 
regulation to implement Phase II of the OTC's MOU (65 FR 62671). On 
August 28, 1998, Maryland submitted a revision to its SIP to implement 
Phase II of the OTC's NOX MOU. 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 
October 19, 2000 NPR (65 FR 62671) and its accompanying Technical 
Support Document (TSD) prepared for that rule. EPA received no comments 
on its October 19, 2000 NPR to approve Maryland's SIP revision to 
implement Phase II of the OTC NOX MOU. The final rule 
approving that SIP revision was signed on December 1, 2000 and was 
published in the Federal Register on December 15, 2000. Therefore, as 
of this time, and in substance, the commenter's contention that 
electric generating units in Maryland be required to meet the Phase II 
emission limits of the OTC's NOX MOU has been satisfied.
    Comment: The commenter asserts that for the source categories found 
in the revised version of COMAR 26.11.09.08 at E, F, G, I (1) and (2) 
and J, RACT was determined to be good management and operating 
practices, combustion analyses and operator training. The commenter 
contends that to the extent that the State is imposing these work 
practice requirements in lieu of numeric emission limits, the 
regulation represents a weakening of the current rule which sets 
presumptive numeric emission limits for all of these categories. The 
commenter cautions that this may violate the Act's antibacksliding 
provision, 42 U.S C. 7515. The commenter goes on to say that other 
states have set numeric NOX RACT emission limits for the 
same or similar source categories. The commenter contends that the 
State and EPA must show that they will assure the same or better degree 
of emission control as the State's current presumptive limits and 
numeric RACT limits in other States, or demonstrate why such limits do 
not represent RACT for any sources in Maryland. Finally, the commenter 
argues that the State and EPA have failed to explain why the use of 
emission control devices such as selective catalytic reduction (SCR) or 
selective non-catalytic reduction (SNCR) are not RACT for these 
sources. According to data compiled by the Institute of Clean Air 
Companies (ICAC), SCR is used by sources elsewhere to reduce 
NOX emissions from industrial furnaces and small boilers 
(See ICAC White Paper: SCR Control of NOX Emissions (11/97)) 
and SNCR is used at three glass furnaces in California and one in 
Germany (See ICAC White Paper: SNCR for Controlling NOX 
Emissions (10/97)).
    Response: EPA disagrees with the assertions of the commenter. While 
the current SIP-approved version of COMAR 26.11.09.08 does contain 
presumptive numerical limits, it concurrently also contains generic 
provisions for sources to submit and be approved for case-by-case RACT 
determinations. As Maryland's SIP-approved NOX RACT 
regulation has always provided for sources to seek and be approved for 
case-by-case RACT determinations versus meeting the regulation's 
otherwise presumptive emission limitation, Maryland's revising the 
regulation to simply include source category specific RACT requirements 
based upon case-by-case RACT determinations it has made does not weaken 
that current SIP-approved regulation and certainly does not violate the 
CAA's antibacksliding provision. Again, Maryland's September 8, 2000 
SIP revision explains that the source-category RACT requirements are 
derived, in part, from case-by-case

[[Page 9525]]

RACT proposals submitted by sources, including those subject under 
COMAR 26.11.09.08 E, F, G, I (1) and (2) and J. The sources in Maryland 
covered under COMAR 26.11.09.08 E, F, G, I (1) and (2) and J all 
provided information to the Maryland MDE justifying why the presumptive 
limit of COMAR 26.11.09.08 did not constitute RACT in accordance with 
the provisions for doing so found in that same SIP-approved regulation. 
Maryland analyzed that information submitted pursuant to the case-by-
case provisions and determined RACT for these sources. Therefore, when 
it amended COMAR 26.11.09.08 to include source category RACT 
requirements to avoid the need to process the case-by-case RACT 
determinations as SIP revisions, Maryland simply included its RACT 
determinations for these sources by their source categories in the 
revised regulation at COMAR 26.11.09.08 E, F, G, I (1) and (2) and J. 
EPA has approved RACT SIP regulations for other States in which 
NOX RACT for small combustion units is defined as work 
practice standards such proper operation and maintenance or an annual 
evaluation and adjustment of the combustion process. For example, EPA 
has approved provisions in Pennsylvania's RACT SIP regulations which 
define RACT for combustion units with a rated heat input equal to or 
greater than 20 MMBTU/hour and less than 50 MMBTU/hour as an annual 
adjustment or tune-up on the combustion process, and which define RACT 
for combustion units with a rated heat input of less than 20 MMBTU/hour 
as proper operation and maintenance. EPA approved these provisions in 
Pennsylvania's RACT SIP regulations because Pennsylvania had ``provided 
information stating that there are no technically or economically 
feasible controls.'' With regard to the comment that Maryland and EPA 
must justify in their rulemakings amending previously SIP-approved 
COMAR 26.11.09.08 as to why SCR and NSCR are not RACT for these types 
of sources, EPA disagrees. As explained previously, on July 11, 1995, 
the Maryland Department of the Environment (MDE) submitted a revision 
to its State Implementation Plan (SIP) for the control of 
NOX emissions from major sources. This submittal included 
revisions to regulation COMAR 26.11.09.01 and 26.11.09.08 which 
pertained to definitions and a ``generic'' NOX RACT rule. 
This generic rule required affected sources to either meet a 
presumptive NOX emissions standard or to submit a ``case-by-
case'' RACT determination for approval by MDE. In all cases, under this 
regulation, RACT requirements were to have been met by no later than 
May 31, 1995. On June 22, 1999 (64 FR 33197), EPA granted conditional 
limited approval of this SIP revision. Under EPA's conditional limited 
approval, each case-by-case RACT determination was to have been 
submitted to EPA as a SIP revision. Many sources in Maryland invoked 
the provisions of the generic rule, submitted case-by-case RACT 
determinations by the date the rule required they do so, and complied 
with them by May 31, 1995. However, the State of Maryland found that 
processing these numerous case-by-case RACT determinations as SIP 
revisions to satisfy EPA's condition was unduly burdensome. Therefore, 
on September 8, 2000, Maryland submitted a SIP revision. It consisted 
of a revised version of COMAR 26.11.09.08 which removed the generic 
RACT provisions and replaced them with source category specific RACT 
emission limitations. Its provisions are to be complied with at all 
times and it provides no extension of the CAA mandated RACT compliance 
date of May 31, 1995. The revisions to COMAR 26.11.09.08 submitted on 
September 8, 2000, were made to satisfy EPA's June 22, 1999 (64 FR 
33197) conditional limited approval of COMAR 26.11.09.08 and to remove 
the burden of processing RACT determinations as case-by-case SIP 
revisions. EPA does not believe that by making these amendments to 
COMAR 26.11.09.08 to satisfy the June 22, 1999 (64 FR 33197) final 
conditional limited approval, Maryland is required to re-evaluate and 
redefine RACT. Moreover, the SCR and SNCR related documents cited by 
the commenter are dated 1997, well beyond both the CAA's mandated date 
for determining RACT and its mandated May 31, 1995 date for complying 
with RACT.
    As a point of information, EPA further notes that the 1990 total 
NOX emission inventory for the entire State of Maryland is 
1056.4 tons per day. The 1990 statewide point source NOX 
total is 559.2 tons/day. The total emissions of NOX from 
Maryland sources covered under 26.11.09.08 E, F, G, I (1) and (2) and J 
equal 2% of the point source NOX inventory and 1% of the 
total NOX inventory.
    Comment: The commenter contends that the State's rationale for the 
cement kiln RACT limits found in COMAR 26.11.09.08 H is very sparse. 
The commenter argues that the State must conduct a thorough review of 
available control technologies, including SNCR, to determine whether 
the controls constitute RACT and if further emission reductions are 
feasible at these sources. Lastly the commenter expresses concern over 
the State TSD's indication that the limits are ``interim'' and that the 
state is deferring emission reductions until the start of the Phase III 
NOX program in 2003. The commenter asserts that if the State 
is deferring RACT controls, such an approach is contrary to the Act's 
mandate for adoption of RACT in Maryland's nonattainment areas.
    Response: EPA disagrees with the commenter's assertions regarding 
the adequacy of the State's determination of RACT for cement kilns. It 
is based upon an analysis of CEM data after combustion optimization. 
The State's TSD explains that as of the date of RACT compliance, the 
only combustion control device (SNCR) installed on a cement kiln 
operated for only a few months due to excessive operating costs. The 
fact that Maryland's TSD includes the statement that the RACT limits 
are interim until the affected sources comply with new NOX 
requirements in 2003 clearly alludes to post-RACT requirements of Phase 
III of the OTC's MOU or those of the NOX SIP call. In fact, 
Maryland's regulation responding to the NOX SIP call was 
proposed for approval by EPA on October 19, 2000 (65 FR 62617), again 
the very same day as EPA proposed approval of the revisions to COMAR 
26.11.09.08 for NOX RACT. The final rule approving that SIP 
revision has been signed and has been or shortly will be published in 
the rules portion of the Federal Register.
    Comment: The commenter contends that the State offers no analysis 
to justify why the proposed limits for municipal waste combustors found 
in COMAR 26.11.09.08 H constitute RACT. Among other things, the State 
must consider whether required use of SNCR would justify lower emission 
limits than those proposed.
    Response: EPA disagrees with the commenter. On page 5 of its June 
30, 1999 TSD and on page 4 of its August 3, 2000 revised TSD, Maryland 
explains that its municipal waste combustors (MWCs) are subject to 
prevention of significant deterioration (PSD) requirements as 
established under the approved SIP and the provisions of its approved 
section 111d/129 plan. EPA agrees that simply being in compliance with 
an applicable BACT determination and/or section 11d/126 plan 
requirement would not, in and of itself, necessarily satisfy RACT 
requirements to be met by May 31, 1995, particularly if the BACT or 
111d/126 emission limitations had been imposed prior to the time RACT 
was to be determined and its compliance date met. However, under MDE's 
BACT determination, the

[[Page 9526]]

new MWC in Montgomery County has installed SNCR. The existing MWC in 
Maryland that is subject to RACT requirements to control NOX 
is now also subject to Maryland's 111d/126 plan for the control of 
emissions from MWC's which was approved by EPA on April 23, 1999 (64 FR 
19919). In fact, the MWC in Baltimore City has installed SNCR to meet 
those standards. Therefore, as of this time, and in substance, the 
commenter's concern related to SNCR have been satisfied.
    Comment: The commenter asserts that the State offers no analysis to 
justify why the proposed limits for internal combustion engines found 
in COMAR 26.11.09.08 I constitute RACT, and must, among other things, 
consider whether SCR constitutes RACT for these sources.
    Response: EPA disagrees with the commenter. On page 5 of its 
revised TSD dated August 3, 2000, Maryland provides its RACT limits for 
internal combustion engines and an explanation that those limits were 
derived from stack tests for the larger units and by applying an 
emission factor for the smaller units. The TSD then refers the reader 
to section VI. of the TSD for source-specific information. At 
subsection K entitled Internal Combustion Engines of section VI. of the 
TSD, on pages 28-30, Maryland provides specific information regarding 
the rationale and justification for its RACT determinations for 
companies which operate internal combustion engines. EPA has reviewed 
the State's rationale and believes it meets the requirements of the 
CAA.
    Comment: The State submittal does not provide commitments of 
adequate funding and personnel to implement and enforce the 
NOX RACT rules and does not detail a program for enforcement 
of the rules.
    Response: EPA disagrees with the commenter's assertion that states 
must provide such information with each SIP revision. Although 42 
U.S.C. 7410(a)(2)(E) and 7410(a)(2)(C) do contain these provisions 
cited by the commenter, section 7410(a)(2)(H) is the statutory 
provision which governs requirements for individual plan revisions 
which States may be required to submit from time to time. There are no 
cross-references in section 7410(a)(2)(H) to either 7410(a)(2)(E) or 
7410(a)(2)(C). Therefore, EPA concludes that Congress did not intend to 
require States to submit an analysis of adequate funding and 
enforcement with each subsequent and individual SIP revision submitted 
under the authority of section 7410(a)(2)(H). Similarly, 40 CFR part 
51, Appendix V contains the list of information which States must 
submit each plan revision in order for EPA to conduct a review of 
completeness under section 7410(k)(1). The list in part 51, Appendix V 
contains no cross-reference to or cite of the provisions 40 CFR 51.280 
as a criterion for determining completeness. Thus, in following 
Congress' intent, EPA has further determined that the requirements of 
40 CFR 51.280 do not apply to each individually-submitted State plan 
revision. Nevertheless, EPA notes that Maryland had previously 
submitted such commitments as part of the 1982 SIP for its ozone 
nonattainment areas. In a final rulemaking action published on March 8, 
1984 (49 FR 8610), EPA approved Maryland's financial and manpower 
resource commitments, after having proposed approval of these 
commitments on February 3, 1983 (48 FR 5124 at 5052). EPA is satisfied 
that Maryland continues to have adequate funding and personnel to 
implement and enforce the current RACT rules. However, EPA does have 
the authority under the Act to make findings regarding implementation 
failures or other SIP deficiencies and take appropriate action in such 
situations. Should EPA find that Maryland lacks adequate resources to 
pursue any violation of the ozone SIP, or if Maryland's enforcement 
response is inadequate, EPA will take appropriate action under its 
Clean Air Act authority.
    Comment: The commenter asserts that the Act required compliance by 
all sources with RACT by no later than May 31, 1995, that the RACT 
rules were not even submitted to EPA until the year 2000, that EPA has 
not specified actual compliance deadlines for the subject sources and 
should not approve these RACT rules without specific compliance 
deadlines.
    Response: EPA disagrees with the commenter that there are no 
compliance dates established for the RACT requirements. As explained 
previously, on July 11, 1995, the MDE submitted a revision to its SIP 
for the control of NOX emissions from major sources. This 
submittal included revisions to regulation COMAR 26.11.09.01 and 
26.11.09.08 which pertained to definitions and a generic NOX 
RACT rule which required affected sources to either meet a presumptive 
NOX emissions standard or to submit a case-by-case RACT 
proposal for approval by MDE. In all cases, under this regulation, RACT 
requirements were to have been met by no later than May 31, 1995. On 
June 22, 1999 (64 FR 33197), EPA granted conditional limited approval 
of this SIP revision. The condition imposed required that all case-by-
case RACT determination be submitted as SIP revisions. On September 8, 
2000, Maryland submitted a SIP revision. It consisted of a revised 
version of COMAR 26.11.09.08 which removed the generic RACT provisions 
and replaced them with source category specific RACT emission 
limitations. Maryland chose to do this to avoid the undue burden of 
submitting all the case-by-case RACT determinations as source-specific 
SIP revisions. The submittal of the September 8, 2000, SIP revision 
satisfies the conditions of EPA's June 22, 1999 conditional limited 
approval. Maryland first revised COMAR 26.11.09.08 on September 22, 
1999 and further revised it on August 30, 2000. These revisions to 
COMAR 26.11.09.08 became effective in the State of Maryland on October 
18, 1999, and September 18, 2000, respectively. Its provisions are to 
be complied with at all times and it provides no extension of the CAA 
mandated RACT compliance date of May 31, 1995.
    While not directly responsive to a specific comment, it should be 
noted that the 1990 total NOX emission inventory for the 
entire State of Maryland is 1056.4 tons per day. The 1990 statewide 
point source NOX total is 559.2 tons/day. From the 1990 
baseline, Maryland's SIP-approved NOX OTC budget rule 
eliminates 413.6 tons/day or reduces total NOX by 39% and 
point source NOX by 74%. From the 1990 baseline, Maryland's 
SIP-approved NOX SIP call rule eliminates an additional 49.3 
tons/day for a total reduction of 462.9 tons/day reducing total 
NOX by a total of 44% and point source NOX by a 
total of 83%.

III. Final Action

    EPA is fully approving Maryland's revised NOX RACT 
regulations found at COMAR 26.11.09.01 and 26.11.09.08 which were 
submitted as a SIP revision by the MDE on September 8, 2000. The 
submittal of the September 8, 2000, SIP revision satisfies the 
conditions of EPA's June 22, 1999 conditional limited approval. 
Maryland first revised COMAR 26.11.09.08 on September 22, 1999 and 
further revised it on August 30, 2000. These revisions to COMAR 
26.11.09.08 became effective in the State of Maryland on October 18, 
1999, and September 18, 2000, respectively.

IV. 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

[[Page 9527]]

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 (Public Law 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 April 9, 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 approving the Maryland NOX RACT 
regulations 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, Intergovernmental 
relations, Nitrogen dioxide, Reporting and recordkeeping requirements.

    Dated: December 15, 2000.
Thomas C. Voltaggio,
Acting 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)(155) to read 
as follows:


Sec. 52.1070  Identification of plan.

* * * * *
    (c) * * *
    (155) Revisions to the Maryland Regulations for NOX RACT 
regulations submitted on September 8, 2000 by the Maryland Department 
of the Environment:
    (i) Incorporation by reference.
    (A) Letter of September 8, 2000 from the Maryland Department of the 
Environment transmitting the Maryland NOX RACT regulations.
    (B) The Maryland NOX RACT regulations found at COMAR 
26.11.09.08, effective October 18, 1999, as revised effective September 
18, 2000. This rule replaces COMAR 26.11.09.08, effective May 10, 1993, 
as revised effective June 20, 1994 and May 8, 1995.
    (C) Addition of COMAR 26.11.09.01B(3-1) (definition of the term 
``high heat release unit''), effective September 18, 2000.
    (ii) Additional Material.--Remainder of September 8, 2000 
submittal.


Sec. 52.1072  [Amended]

    3. Section 52.1072(e) is removed and reserved.

[FR Doc. 01-3161 Filed 2-7-01; 8:45 am]
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