[Federal Register Volume 67, Number 39 (Wednesday, February 27, 2002)]
[Rules and Regulations]
[Pages 8897-8899]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4523]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MD121-3082a; FRL-7144-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland Nitrogen Oxide Averaging Plan for Constellation Power Source 
Generation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking direct final action to approve a revision to the 
Maryland State Implementation Plan (SIP). This SIP revision consists of 
a Consent Order to Constellation Power Source Generation, Inc. for an 
inter-facility averaging plan for emissions of nitrogen oxides 
(NOX) at facilities located in Maryland and owned by 
Constellation Power. The SIP revision allows Constellation Power to use 
system-wide emissions averaging to comply with the applicable 
NOX reasonably available control technology (RACT) limits 
for 10 boiler units located at five electric generating facilities 
owned by Constellation Power. EPA is approving this revision in 
accordance with the requirements of the Clean Air Act.

DATES: This rule is effective on April 29, 2002 without further notice, 
unless EPA receives adverse written comment by March 29, 2002. 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 David L. Arnold, Chief, 
Air

[[Page 8898]]

Quality Planning and Information Services Branch, Mailcode 3AP21, 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 the 
Maryland Department of the Environment, 2500 Broening Highway, 
Baltimore, Maryland, 21224.

FOR FURTHER INFORMATION CONTACT: David L. Arnold, (215) 814-2172 or by 
e-mail at [email protected]. Please note that any formal comments 
must be submitted, in writing, as provided in the ADDRESSES section of 
this document.

SUPPLEMENTARY INFORMATION:

I. Background

    Sections 182(b)(2) and 182(f) of the Clean Air Act require major 
sources in ozone nonattainment areas to implement RACT for the control 
of NOX. Maryland regulation, COMAR 26.11.09.08, establishes 
RACT level NOX emission limits for specific types of boilers 
and other fuel burning equipment. EPA approved Maryland's 
NOX RACT regulation as a SIP revision on February 8, 2001. 
Section (B)(3) of COMAR 26.11.09.08 allows sources to apply for an 
alternative emission standard from those specified in the regulation. 
Section (B)(4) of COMAR 26.11.09.08 allows sources that own and operate 
two or more affected units to achieve compliance through system-wide 
emissions averaging provided that total system-wide NOX 
emissions would be less than the total emissions achieved through 
compliance with the applicable unit specific emission standards. 
Section (B)(4) of COMAR 26.11.09.08 also requires that such an 
emissions averaging plan be submitted to and approved by EPA as a SIP 
revision. On April 25, 2001, the State of Maryland submitted a formal 
revision to its State Implementation Plan (SIP). The SIP revision 
consists of a Consent Order issued by the Maryland Department of 
Environment (MDE) to Constellation Power Source Generation, Inc. for an 
inter-facility averaging plan for NOX emissions at five 
electric generating facilities. The SIP revision allows Constellation 
Power to use system-wide emissions averaging to comply with the 
applicable NOX reasonably available control technology 
(RACT) limits for 10 boiler units located at the five facilities.

II. Summary of SIP Revision

    The Consent Order issued by the MDE to Constellation Power Source 
Generation, Inc. establishes an averaging plan at five electric 
generating plants as a means of compliance with the NOX RACT 
requirements. The Consent Order was signed and dated April 16, 2001 and 
does not expire. The Consent Order applies to the following electric 
generating installations units owned by Constellation Power in 
Maryland: Brandon Shores units 1 and 2; Gould Street unit 3; H.A. 
Wagner units 1, 2, 3 and 4; C. P. Crane units 1 and 2; and Riverside 
unit 4. Other units located at these installations are not part of the 
averaging plan and remain subject to unit specific emission limits 
established in COMAR 26.11.09.08. Constellation Power is required to 
calculate mass emissions from the affected units on a daily basis, 
determine compliance with the averaging plan using continuous emissions 
monitors, and to submit quarterly reports of exceedances to both MDE 
and EPA. Constellation Power agrees that if it fails to comply with the 
averaging plan, all sources remain subject to the unit specific 
emission limits of COMAR 26.11.09.08. The aggregate mass emissions from 
all units, under the averaging plan, must be less than the mass 
emissions that would otherwise occur if each unit were subject to the 
applicable NOX RACT emissions limit. Constellation Power 
must certify annually that the NOX mass emissions for all 
ten units are at least five percent less than otherwise allowed by the 
applicable NOX RACT emission limits. Other provisions in the 
Consent Order require Constellation Power to notify the MDE and revise 
the averaging plan if Constellation Power acquires new or additional 
electric generating units. This provision does not exempt any new or 
modified units from applicable New Source Review requirements. The 
Consent Order also contains provisions for transfer of ownership, Title 
V permits and severability. This Consent Order for NOX RACT 
averaging does not relieve Constellation Power from the Consent Decree 
dated November 11, 1999 for compliance with Maryland's NOX 
Budget Rule (COMAR 26.11.27 and 26.11.28).

III. EPA Evaluation of the SIP Revision

    Emissions averaging programs are a common form of Economic 
Incentive Program (EIP). Emissions averaging EIPs provide a source or 
group of sources flexibility in complying with a rate-based regulatory 
limit by averaging the rate of pollution one source emits with another 
source. Averaging enables a source emitting above its allowable 
emission rate limit to comply with that rate limit by averaging its 
emissions with a another source(s) emitting below that second source's 
regulatory limit. Emissions averaging EIPs involve emission units at 
one or more facilities within the same state. EPA issued guidance to 
the states in developing EIPs in January 2001, ``Improving Air Quality 
with Economic Incentive Programs'', EPA-452/R-01-001. Maryland's SIP 
revision for Constellation Power Source Generation's NOX 
emission averaging plan meets all the applicable requirements and EPA 
guidance for RACT and EIPs. It also includes appropriate provisions for 
assuring compliance and enforceability. A more detailed description of 
EPA's evaluation of the Constellation Power emissions averaging EIP can 
be found in the technical support document (TSD) prepared in support of 
this rulemaking action. A copy of the TSD is available, upon request, 
from the EPA Regional Office listed in the ADDRESSES section of this 
document.

IV. Final Action

    EPA is approving Maryland's April 25, 2001 SIP revision which 
consists of the Consent Order dated April 16, 2001 between MDE and 
Constellation Power Source Generation, Inc. establishing a system-wide 
averaging plan to comply with NOX RACT requirements. 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 revision if adverse comments are filed. 
This rule will be effective on April 29, 2002 without further notice 
unless EPA receives adverse comment by March 29, 2002. 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.

[[Page 8899]]

V. 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. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). 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). This rule also does not 
have tribal implications because it will not have a substantial direct 
effect on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes, 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 
This action also does not have Federalism implications because it does 
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). 
This action 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 ``Protection of Children 
from Environmental Health Risks and Safety Risks'' (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. 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. Section 804 exempts from section 801 the following types 
of rules: (1) Rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required 
to submit a rule report regarding today's action under section 801 
because this is a rule of particular applicability establishing source-
specific requirements for five named facilities.

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action to approve the Consent Order for 
Constellation Power Source Generation, Inc. must be filed in the United 
States Court of Appeals for the appropriate circuit by April 29, 2002. 
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: February 7, 2002.
Donald S. Welsh,
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)(168) to read 
as follows:


Sec. 52.1070  Identification of plan.

* * * * *
    (c) * * *
    (168) SIP revision submitted on April 25, 2001 by the State of 
Maryland consisting of a Consent Order dated April 16, 2001 between the 
Maryland Department of the Environment and Constellation Power Source 
Generation Inc. The Consent Order establishes a system-wide inter-
facility emissions averaging plan to comply with NOX RACT 
requirements at five facilities owned by Constellation Power Source 
Generation Inc. and located in the State of Maryland.
    (i) Incorporation by reference.
    (A) Letter of April 25, 2001 from the Maryland Department of the 
Environment (MDE) transmitting a Consent Order issued by MDE to 
Constellation Power Source Generation, Inc. establishing an averaging 
plan at five electric generating plants as a means of compliance with 
the NOX RACT requirements.
    (B) Consent Order between the Maryland Department of the 
Environment and Constellation Power Source Generation, Inc. dated April 
16, 2001.
    (C) NOX RACT Averaging Plan Proposal submitted by 
Constellation Power Source Generation, Inc. dated November 6, 2000.
    (ii) Additional Material.--Remainder of the state submittal 
pertaining to the revision listed in paragraph (c)(168) of this 
section.
[FR Doc. 02-4523 Filed 2-26-02; 8:45 am]
BILLING CODE 6560-50-P