[Federal Register Volume 66, Number 29 (Monday, February 12, 2001)]
[Rules and Regulations]
[Pages 9764-9766]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-3378]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MD105-3054; FRL-6916-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; Approval of Opacity Recodifications and Revisions To Visible 
Emissions Requirements COMAR 26.11.06.02

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the 
Maryland State Implementation Plan (SIP). The revisions include the 
recodification of Maryland's general opacity regulations as well as the 
addition of procedures whereby a source may apply for and be granted a 
federally enforceable alternative visible emission standard. EPA is 
approving these revisions to Maryland's SIP in accordance with the 
requirements of the Clean Air Act.

DATES: This rule is effective on April 13, 2001 without further notice, 
unless EPA receives adverse written comment by March 14, 2001. If EPA 
receives such comments, it will publish a timely withdrawal of the 
direct final rule in the Federal Register and inform the public that 
the rule will not take effect.

ADDRESSES: Written comments should be mailed to Mr. Denis Lohman, 
Acting Chief, Technical Assessment Branch, Mailcode 3AP22, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. 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: Ruth E. Knapp, (215) 814-2191, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Summary of the SIP Revision

    On March 21, 1991 and November 5, 1997, the State of Maryland 
submitted formal revisions to its State Implementation Plan (SIP). The 
SIP revisions consist of a recodification of Maryland's general opacity 
regulations and the addition of procedures whereby a source may apply 
for and receive a federally enforceable alternative visible emission 
standard. In the 1991 submittal, Maryland recodified all of its general 
opacity regulations as part of the State Air and Radiation Management 
Administration's (ARMA) transfer from the Department of Health and 
Mental Hygiene (DHMH) to the Maryland Department of the Environment 
(MDE). As a result, the applicable citations have been revised from 
COMAR 10.18.06.02 and .03 to COMAR 26.11.06.02. In addition, Maryland 
has recodified its provisions governing control of particulate matter 
from materials handling and construction by separating the applicable 
visible emissions provisions from the applicable particulate matter 
control provisions. As a result, Maryland has revised the citation of 
the particulate matter provisions related to materials handling and 
construction from COMAR 10.18.06.03D(1) to COMAR 26.11.06.03D, while 
moving the applicable visible emissions provisions from COMAR 
10.18.06.03D(2) to COMAR 26.11.06.02C(3). In the 1997 submittal, 
Maryland revised COMAR 26.11.06.02B to include specific procedures by 
which a source may apply for and be granted a federally enforceable 
alternative visible emission standard. On February 6, 1998, Maryland 
also submitted an additional provision, COMAR 26.11.06.02A(1)(j) 
[General Exceptions--Emissions at Federal Facilities] as a SIP 
revision. EPA will act upon this SIP revision request in a separate 
rulemaking action.
    On November 3, 1992 (57 FR 49651), EPA approved the general COMAR 
recodification scheme as a revision of the Maryland SIP (See, 40 CFR 
52.1070(c)(90). However, that action did not include the recodification 
of Maryland's general opacity and the aforementioned particulate matter 
control provisions. EPA is now approving these revised COMAR citations 
of Maryland's general opacity and particulate matter control provisions 
as a revision of the Maryland SIP. There are no substantive revisions 
to the wording of these SIP provisions. The revised citations are 
summarized below:

----------------------------------------------------------------------------------------------------------------
                Provision title/Subject matter                    Current SIP citation     Revised SIP citation
----------------------------------------------------------------------------------------------------------------
 General Exceptions--Open fires (except salamanders)..          10.18.06.02D(2)       26.11.06.02A(1)(b)
 General Exceptions--Fugitive emissions from iron and           10.18.06.02D(3)       26.11.06.02A(1)(c)
 steel production installations...............................
 General Exceptions--Fugitive emissions from                    10.18.06.02D(4)       26.11.06.02A(1)(d)
 metallurgical, slot-type, byproduct coke ovens...............
 General Exceptions--Fugitive emissions from skull              10.18.06.02D(6)       26.11.06.02A(1)(f)
 cracker oxygen lancing.......................................
 General Exceptions--Emissions during start-up and                 10.18.06.02C          26.11.06.02A(2)
 process modifications, or occasional cleaning of control
 equipment....................................................
 Visible Emission Standards--Areas I, II, V and VI....             10.18.06.02A          26.11.06.02C(1)
 Visible Emission Standards--Areas III, and IV........             10.18.06.02B          26.11.06.02C(2)
 Visible emissions beyond the property lot line from               10.18.06.03D          26.11.06.02C(3)
 any act of materials handling or construction--Areas I, II,
 V, and VI only...............................................
----------------------------------------------------------------------------------------------------------------

    The provisions now found at COMAR 26.11.06.02A(1)(e), (g), (h), and 
(i) were not part of the SIP when they were found at COMAR 
10.18.06.02C, and therefore are not being addressed in this action to 
approve the recodification of SIP provisions action. In conjunction 
with this approval action, EPA is replacing SIP provision COMAR 
10.18.01.08 [Exceptions--Case by Case] with the provisions in COMAR 
26.11.06.02B which includes the

[[Page 9765]]

procedures by which a source may apply for and be granted a federally 
enforceable alternative visible emissions standard.
    EPA is approving the revisions submitted on November 5, 1997, which 
consist of the procedures by which a source may apply for and be 
granted a federally enforceable alternative visible emission limit on a 
case-by-case basis. As discussed above, the SIP-approved general 
visible emission standards for the entire State of Maryland are found 
in 26.11.06.02C. The regulation specifies the standards within defined 
geographical areas. In Areas I, II, V, and VI, a person may not cause 
or permit the discharge of emissions from any installation, other than 
water in an uncombined form, which is greater than 20 percent opacity. 
In Areas III and IV, a person may not cause or permit the discharge of 
emissions from any installation or building, other than water in an 
uncombined form, which is visible to human observers. Also, in Areas I, 
II, V, and VI, a person may not cause or permit, from any act of 
materials handling or construction, visible emissions beyond the lot 
line of the property on which the emissions originate. The procedures 
by which a source may apply for and be granted a federally enforceable 
alternative visible emission limit on a case-by-case basis are 
contained in 26.11.06.02B, Case-by-Case Exception to Visible Emissions 
Standards. Those procedures are specific and require that a source must 
submit an application for an alternative standard which includes the 
following information: a description of the installation and air 
pollution controls, process information, a demonstration that all other 
applicable regulations are met when visible emissions occur, and a 
demonstration that it is an economic burden to attain the existing 
visible emission standard. The regulation requires the use of an MDE--
issued document which lays out the criteria to be used to determine if 
it is an economic burden to meet the existing visible emission limit. 
The source's application must include the federally-approved and 
enforceable methods to be used demonstrate that it is in compliance 
with all applicable regulations when visible emissions occur and also 
to demonstrate that it can attain an alternative visible emission 
standard in conjunction with all other applicable air pollution control 
requirements. After providing the above information, a public comment 
period will be provided for all interested parties to review and 
comment upon the source's application prior to the granting an 
alternative standard. If the application is approved, the source will 
be granted an alternative visible emission standard for up to a five 
year period, and the alternative standard may be renewed. The 
alternative visible emissions standard is to be contained in an order 
issued by the MDE pursuant to 26.11.06.02B. The order is to require and 
specify the federally-approved and enforceable test methods and 
procedures to be used to demonstrate that the source is in compliance 
with the alternative visible emission standard and all other applicable 
requirements. The order may contain any conditions or requirements 
necessary to insure continuous compliance with the alternative 
standard. An approved alternative visible emissions standard, applied 
for and granted in accordance with all of the SIP-approved procedures 
contained in 26.11.06.02B, Case-by-Case Exception to Visible Emissions 
Standards shall be federally enforceable.
    In two instances, an alternative visible emission standard may be 
granted without going through the application process. Exceptions may 
be granted without going through the process when the application of 
the requirement to a residential building housing two or fewer families 
creates undue economic hardship on the individuals residing in it, or 
if the equipment being used has its primary way of transferring heat by 
a radiant method.
    The procedures contained in the case-by-case visible exception in 
COMAR 26.11.06.02B are not applicable to the following sources or 
situations because they do not have limits as provided under 
26.11.06.02C: Burning wood in fireplaces; open fires (except 
salamanders) permitted under provisions of COMAR 26.11.07.03, .04, and 
.05.; fugitive emissions from iron and steel production installations 
in compliance with COMAR 26.11.10.03B; fugitive emissions from 
metallurgical, slot-type, byproduct coke ovens in compliance with COMAR 
26.11.10.03C; fugitive emissions from skull cracker oxygen lancing in 
compliance with COMAR 26.11.10.04C.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comment. However, in the ``Proposed Rules'' section of today's 
Federal Register, EPA is publishing a separate document that will serve 
as the proposal to approve the SIP revisions if adverse comments are 
filed. This rule will be effective on April 13, 2001 without further 
notice unless EPA receives adverse comment by March 14, 2001. If EPA 
receives adverse comment, EPA will publish a timely withdrawal in the 
Federal Register informing the public that the rule will not take 
effect. EPA will address all public comments in a subsequent final rule 
based on the proposed rule. EPA will not institute a second comment 
period on this action. Any parties interested in commenting must do so 
at this time.

II. Final Action

    EPA is approving the recodifications which revise the citations 
regarding opacity and control of particulate matter from materials 
handling and construction from COMAR 10.18.06.02 and .03D to COMAR 
26.11.06.02 and .03D. EPA is also approving the revisions to COMAR 
26.11.06.02B which provide procedures whereby a source may apply for 
and be granted a federally enforceable alternative visible emission 
standard.

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 (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

[[Page 9766]]

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 13, 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 regarding recodifications to Maryland's 
opacity regulations and approval of procedures for granting an 
alternative visible emission standard 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, Particulate matter.

    Dated: November 30, 2001.
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 paragraph (c)(152) to read 
as follows:


Sec. 52.1070  Identification of plan.

* * * * *
    (c) * * *
    (152) Revisions to the Maryland Regulations governing visible 
emissions submitted on March 21, 1991 and November 5, 1997 by the 
Maryland Department of the Environment:
    (i) Incorporation by reference.
    (A) Letters from the Maryland Department of the Environment dated 
March 21, 1991 and November 5, 1997 submitting revisions to the 
Maryland State Implementation Plan.
    (B) Document entitled ``Procedures To Be Used To Evaluate An 
Application For An Alternative Visible Emissions Standard Under COMAR 
26.11.06.02B''.
    (C) Code of Maryland Administrative Regulations (COMAR) 10.18.06.02 
(General Emission Standards, Prohibitions, and Restrictions--Visible 
Emissions), Sections 10.18.06.02A(1), .02(A)(1)(a), .02(A)(2), and 
.02C(1) and (2), effective December 3, 1984.
    (D) Recodified COMAR 26.11.06.02 (General Emission Standards, 
Prohibitions, and Restrictions--Visible Emissions), Sections 
26.11.06.02A(1) [General paragraph], .02A(1)(a) through (d) and (f), 
.02A(2), and .02C(1) through (3), effective August 1, 1988.
    (E) COMAR 26.11.06.02B (Visible Emissions--Case-by-Case Exception 
to the Visible Emissions Standards).
    (1) COMAR 10.18.06.02B(1)(a) through (d), .02B(2)(a), .02B(4)(a) 
and (b), and .02B(5)(a) and (b), effective December 3, 1984. This rule 
replaces COMAR 10.18.01.08. [Recodified as COMAR 26.11.06.02B, 
effective August 1, 1988.]
    (2) COMAR 26.11.06.02B(2)(b) through (e) and .02 B(4)(c), effective 
July 3, 1995.
    (F) Recodified COMAR 26.11.06.03D (Particulate Matter from 
Materials Handling and Construction), effective August 1, 1988.
    (ii) Additional Material.
    (A) Remainder of the March 21, 1991 submittal (MD91-01) as it 
pertains to the recodification of COMAR 26.11.06.02 and 26.11.06.03D.
    (B) Remainder of the November 5, 1997 submittal (MD97-02).

[FR Doc. 01-3378 Filed 2-9-01; 8:45 am]
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