[Federal Register Volume 67, Number 175 (Tuesday, September 10, 2002)]
[Proposed Rules]
[Pages 57496-57500]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23081]



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Part III





Environmental Protection Agency





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40 CFR Part 70



Clean Air Act Full Approval of Operating Permit Program; Maryland; 
Proposed Rule

  Federal Register / Vol. 67, No. 175 / Tuesday, September 10, 2002 / 
Proposed Rules  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[MD-T5-2002-01a; FRL-7375-3]


Clean Air Act Full Approval of Operating Permit Program; Maryland

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve the operating permit program for 
the State of Maryland. Maryland's operating permit program was 
submitted in response to the Clean Air Act (CAA) Amendments of 1990 
that requires States to develop, and submit to EPA, programs for 
issuing operating permits to all major stationary sources and to 
certain other sources within the States' jurisdiction. On July 3, 1996, 
EPA published a rule, granting final interim approval of Maryland's 
operating permit program, which listed the reasons why Maryland did not 
receive full approval. On July 15, 2002, Maryland submitted a corrected 
operating permit program that included regulatory amendments and other 
documentation that address all deficiencies identified in the interim 
approval action as well as other additional amendments not related to 
the interim approval. With the correction of the deficiencies cited in 
the final rule granting interim approval, EPA is proposing to fully 
approve the operating permit program for the State of Maryland.

DATES: Comments on this notice must be received in writing on or before 
October 10, 2002.

ADDRESSES: Written comments should be mailed to Ms. Makeba Morris, 
Chief, Permits and Technical Assessment Branch, Mail code 3AP11, 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 
and Air Quality Permits Program, Air and Radiation Management, Maryland 
Department of the Environment, 188 Washington Boulevard, Baltimore, 
Maryland 21230.

FOR FURTHER INFORMATION CONTACT: Helene Drago, (215) 814-5796, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION: On July 15, 2002, the State of Maryland 
submitted documentation that revises its State operating permit 
program. These revisions are the subject of this document. This section 
provides additional information on the revisions by addressing the 
following questions:

What Is the State Operating Permit Program?

    The Clean Air Act (CAA) Amendments of 1990 required all States to 
develop operating permit programs that meet certain federal criteria. 
When implementing the operating permit programs, the States require 
certain sources of air pollution to obtain permits that contain all of 
their applicable requirements under the CAA. The focus of the operating 
permit program is to improve enforcement by issuing each source a 
permit that consolidates all of its applicable CAA requirements into a 
federally-enforceable document. By consolidating all of the applicable 
requirements for a given air pollution source into an operating permit, 
the source, the public, and the State environmental agency can more 
easily understand what CAA requirements apply and how compliance with 
those requirements is determined.
    Sources required to obtain an operating permit under this program 
include ``major'' sources of air pollution and certain other sources 
specified in the CAA or in EPA's implementing regulations. For example, 
all sources regulated under the acid rain program, regardless of size, 
must obtain operating permits. Examples of ``major'' sources include 
those that have the potential to emit 100 tons per year or more of 
volatile organic compounds, carbon monoxide, lead, sulfur dioxide, 
nitrogen oxides, or particulate matter (PM10); those that emit 10 tons 
per year of any single hazardous air pollutant (HAP) specifically 
listed under the CAA; or those that emit 25 tons per year or more of a 
combination of HAPs. In areas that are not meeting the national ambient 
air quality standards (NAAQS) for ozone, carbon monoxide, or 
particulate matter, major sources are defined by the gravity of the 
nonattainment classification.

What Are the State Operating Permit Program Requirements?

    The minimum program elements for an approvable operating permit 
program are those mandated by title V of the CAA Amendments of 1990 and 
established by EPA's implementing regulations at title 40, part 70--
``State Operating Permit Programs'' in the Code of Federal Regulations 
(part 70). Title V of the CAA requires state and local air pollution 
control agencies to develop operating permit programs and submit them 
to EPA for approval by November 15, 1993. Under title V, State and 
local air pollution control agencies that implement operating permit 
programs are called ``permitting authorities''.
    Where an operating permit program substantially, but not fully, met 
the program approval criteria outlined at 40 CFR part 70, EPA granted 
interim approval contingent on the permit authority revising its 
program to correct those programmatic deficiencies that prevented full 
approval. Maryland's original operating permit program substantially, 
but not fully, met the requirements of 40 CFR part 70. Therefore, EPA 
granted final interim approval of the program in a rule making 
published on July 3,1996. (See 61 FR 34733.) The interim approval 
notice identified nine outstanding deficiencies that had to be 
corrected in order for Maryland's program to receive full approval.

In 1995, What Did Maryland Submit To Meet the Title V Requirements?

    The Secretary of the Maryland Department of the Environment, on 
behalf of the Governor of Maryland, submitted a title V operating 
permit program for the State of Maryland on May 09, 1995. The submittal 
included regulations for implementing the part 70 program which are 
found in the Code of Maryland Regulations (COMAR), specifically COMAR 
26.11.02 and .03. In addition, the program submittal included a legal 
opinion from the Attorney General of Maryland (dated May 31, 1995) 
affirming that the laws of the State provide adequate authority to 
carry out all aspects of the program. The submittal contained a 
description of how the State would implement the program, evidence of 
proper adoption of the program regulations, application and permit 
forms and a permit fee demonstration. This program, including the 
operating permit regulations, substantially met the requirements of 
part 70.
    On October 30, 1995, EPA proposed interim approval of the 
Maryland's operating permit program. (See 60 FR 55232). The interim 
approval notice identified nine outstanding deficiencies that had to be 
corrected in order for Maryland's program to receive full approval. On 
July 3, 1996, EPA granted final interim approval of the program in a 
rulemaking. (See 61 FR 34733.)

What Is Being Addressed in This Document?

    On July 15, 2002, Maryland submitted documents that revise its 
title V operating permit program. In general,

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the submission included amendments to Maryland's operating permit 
program regulations that were adopted on June 8, 2001, an amendment to 
Maryland's statute signed into law by the Governor of Maryland on May 
16, 2002, legal opinions from the Attorney General of Maryland dated 
May 20, 2002 and October 9, 2001, and evidence of proper adoption of 
the program revisions. These amendments are intended to correct 
deficiencies identified by EPA when it granted final interim approval 
of Maryland's program in 1996. In addition, Maryland submitted 
amendments to its operating permit program regulations adopted on 
November 6, 2001. EPA is proposing to approve these additional 
amendments.

What Is Not Being Addressed in This Document?

    On December 11, 2000, EPA announced a 90-day comment period for 
members of the public to identify deficiencies they perceive exist in 
State and local agency operating permits programs. (See 65 FR 77376.) 
The public was able to comment on all currently-approved operating 
permit programs, regardless of whether they have been granted full or 
interim approval. The December 11, 2000 notice instructed the public 
not to include in their comments any program deficiencies that were 
previously identified by EPA when the subject program was granted 
interim approval. Since those program deficiencies have already been 
identified and permitting authorities have been working to correct 
them, EPA will solicit comments when taking action on those corrective 
measures.
    EPA stated that it will consider information received from the 
public pursuant to the December 11, 2000 notice and determine whether 
it agrees or disagrees with the purported deficiencies. Where EPA 
agrees there is a deficiency, it will publish a notice of deficiency 
consistent with 40 CFR 70.4(i) and 40 CFR 70.10(b). The Agency will, at 
the same time, publish a notice identifying any alleged problems that 
we do not agree are deficiencies. For programs that have not yet 
received full approval, such as Maryland's program, EPA would publish 
these notices by December 1, 2001. On December 5, 2001, EPA announced 
that a part 71 federal operating permit program became effective in 
Maryland. (See 66 FR 63236.) Because an approved part 70 program is not 
in effect in Maryland, EPA has not yet responded to public comments on 
the State's part 70 program.
    EPA received numerous comments in response to the December 11, 2000 
notice announcing the start of the 90-day public comment period. As 
part of those comments, EPA Region III received comments about 
Maryland's interim approved operating permit program. The Agency will 
respond to those comments in a separate notice(s), as required by the 
December 11, 2000 notice.
    EPA is not addressing any comments received pursuant to the 
December 11, 2000 notice in this document. As mentioned above, comments 
provided in accordance with the December 11, 2000 notice were to 
address shortcomings that had not previously been identified by EPA as 
deficiencies necessitating interim, rather than full, approval of a 
State's operating permit program. This action, proposing full approval 
of Maryland's operating permit program, addresses program deficiencies 
identified when EPA granted interim approval to Maryland's program in 
1996 as well as other regulatory amendments. Therefore, any persons 
wishing to comment on this action should do so at this time.

What Are the Changes to Maryland's Program That Correct Interim 
Approval Deficiencies?

    1. The principles of ``representational'' standing provided by the 
CAA, its implementing regulations and Article III of the U.S. 
Constitution as interpreted by the federal courts was not fully 
articulated by Maryland law. The Maryland Environmental Standing Act 
(MESA) provided standing to those ``persons'' as defined under MESA. 
Not included in that definition were individuals and organizations that 
do not reside or do business in Maryland. The minimum requirements for 
judicial review are those established by the CAA and EPA's implementing 
regulations. In general, State programs must provide an opportunity for 
judicial review in State court to the applicant, to any person who 
filed comments or attended a hearing on a permit, and any other person 
who could obtain judicial review under State law. When EPA granted 
Maryland interim approval in 1996, it stated that in order to fully 
meet the standing requirements of the CAA the State must take 
legislative action to ensure that the standing requirements for non-
state residents and organizations not doing business in Maryland are 
not more restrictive than the minimum requirements of Article III of 
the U.S. Constitution as they apply to federal courts. On May 16, 2002, 
Maryland changed its statute at Ann. Code MD. 2-404.1 to expand its 
standing for the title V operating permit program to meet the threshold 
standing requirements under federal constitutional law. Maryland 
revised its Attorney General's opinion by stating that Maryland's 
standing law is now equivalent to federal constitutional standard. With 
this statute revision, Maryland's program is consistent with the scope 
of standing for judicial review implicit in the CAA and title V's 
implementing regulations.
    2. Maryland was required to revise the provisions for insignificant 
activities under COMAR 26.11.03.04 in the following three ways to 
achieve consistency with the requirements of 40 CFR 70.5(c):
    a. Maryland's regulation found at COMAR 26.11.03.04A(18) provided 
that ``any other emission unit that is not subject to an applicable 
requirement of the Clean Air Act'' may be excluded from part 70 permit 
applications. This item was part of a list of other emission units and 
activities which were allowed to be excluded from part 70 applications. 
EPA recommended that Maryland remove this item from the list because it 
was important for such unspecified units or activities to be included 
in the permit application even if they did not have applicable 
requirements. Rather than remove the item from its regulations, 
Maryland amended the provision to ensure that such emission units and 
activities were not excluded from permit applications. Maryland revised 
COMAR 26.11.03.04A to require that any emission unit or activity that 
the permit applicant believes does not have any applicable requirements 
and is seeking to be exempted from the requirement to provide detailed 
emissions and operational information in the permit application must be 
identified to, and agreed upon by, the Maryland Department of the 
Environment during the application process. Identification of these 
units during the permit application process ensures that Maryland, EPA 
and members of the public who have access to the permit application are 
aware of the existence of these units at an applicant's facility. 
Because these emissions units and activities are clearly identified as 
part of the permit application process, the Maryland Department of the 
Environment can affirmatively determine whether additional information 
in the permit application regarding these units or activities is 
necessary to assess whether they have applicable requirements. The 
identification of these units also has a subsidiary benefit of allowing 
the State to request additional information about a unit that may be 
subject to state-only requirements, even if there is no federal 
applicable requirement. If the Maryland

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Department of Environment determines that additional information is 
necessary from the permit applicant to determine whether an emission 
unit is subject to an applicable requirement, it may specify the 
additional information needed or deny the applicant's request that the 
unit be exempt from the requirement to provide detailed emissions and 
operational information under COMAR 26.11.03.03
    Further, the amended language of COMAR 26.11.03.04A works in 
conjunction with other provisions of this section which require that 
(1) a permit applicant may not omit information on an emissions unit 
that is necessary to determine the applicability of, or to impose, an 
applicable requirement of the CAA; (2) potential emissions from all 
exempt sources shall be included in the determination of whether a 
source is major; (3) the listing as an insignificant activity does not 
exempt an emissions unit from any air quality regulation; and (4) 
emissions units that use Class I or Class II ozone-depleting substances 
subject to an applicable requirement established under title VI of the 
CAA are not exempt from the part 70 application. Therefore, the amended 
provisions of COMAR 26.11.03.04A ensure that permit applicants are 
required to provide all information in their applications necessary to 
determine the applicability of requirements and to verify compliance 
with those applicable requirements.
    b. Maryland's regulation at COMAR 26.11.03.04B did not provide that 
a permit applicant shall not omit information needed to determine the 
applicability of, or to impose, any applicable requirement as required 
under 40 CFR 70.5(c). Maryland amended its regulation to include COMAR 
26.11.03.04C which states ``A permit applicant may not omit information 
on an emissions unit that is necessary to determine the applicability 
of, or to impose, an applicable requirement of the Clean Air Act.'' 
With this amendment, Maryland's program is consistent with 40 CFR 
70.5(c).
    c. Maryland's regulation at COMAR 26.11.03.04 A(2) provided an 
exemption from part 70 permit applications to boilers used exclusively 
to operate steam engines for farm and domestic use. Maryland has 
deleted this exemption from it regulation. While not included as an 
interim approval deficiency, the Maryland statute found at Ann. Code. 
Md. 2-402 provides a similar exemption to boilers used exclusively to 
operate steam engines for farm and domestic use. Maryland has provided 
a statement with supporting documentation that no boilers used 
exclusively to operate steam engines for farm and domestic currently 
exist in the State. Further, the State provided an Attorney General's 
opinion, dated May 20, 2002 stating that since there are no sources 
subject to the exemption, Maryland's title V operating permit program 
applies to all sources that are required to be covered by the title V 
permit program. With the deletion from its regulation, coupled with the 
State's affirmation and Attorney General's opinion, Maryland's 
regulation is consistent with 40 CFR 70.5(c).
    3. Maryland's regulations at COMAR 26.11.03.21 did not specifically 
state that the procedures for issuing general permits include notice 
and opportunity for public comment and hearing by affected states 
consistent with 40 CFR 70.7(h)(3) and 70.8 and a 45-day EPA review 
consistent with 40 CFR 70.8(a) and (c). In addition, Maryland's 
regulation for issuing general permits did not provide that the State 
would keep a record of public commenters and issues raised during the 
public participation process so that EPA may fulfill its obligation 
under section 505(b)(2) of the CAA to determine whether a citizen 
petition should be granted. Maryland revised its regulation, found at 
COMAR 26.11.03.21.A, to clarify that the procedures for issuing general 
permits include a review by EPA and affected states. Further, COMAR 
26.11.03.21.B was added which states ``the Department shall maintain 
records of the public comments and issues raised during the public 
participation process.'' With these amendments, Maryland's regulations 
are consistent with 40 CFR 70.7(h) and 70.8.
    4. COMAR 26.11.03.21.J allowed Maryland to revise or repeal a 
general permit using the procedures that are appropriate to the 
particular permit. COMAR 26.11.03.21.L stated that the revision 
procedures set forth in Maryland's regulations do not apply to a 
general permit, except as provided in the general permit. These 
provision were inconsistent with part 70 because they gave Maryland the 
discretion to determine the appropriate procedures that should be 
followed to revise a general permit. To remedy the deficiency, Maryland 
has deleted COMAR 26.11.03.21.J. In addition, Maryland revised COMAR 
26.11.03.21.L to clearly state that all permit revisions procedures 
apply to general permits. With these amendments, Maryland's regulations 
are consistent with 40 CFR 70.7(e).
    5. Maryland's requirements for permit reopenings, including COMAR 
26.11.03.07.A(2), 26.11.03.08.A, and 26.11.03.20C(4), (5) and (6), 
provided the State discretion to follow procedures other than the 
procedures for permit issuance. Federal regulations at 40 CFR 
70.7(f)(2) require that procedures to reopen and issue a permit shall 
follow the same procedure as apply to initial permit issuance. Maryland 
has revised its regulations found at COMAR 26.11.03.07.A(2), 
26.11.03.08.A, and 26.11.03.20C(4), and (5) to provide that procedures 
to reopen and issue a permit shall follow the same procedure for 
issuance of an initial permit. With these amendments, Maryland's 
regulations are consistent with 40 CFR 70.7(f)(2).
    6. COMAR 26.11.03.17F provided that the permittee could submit an 
application for a significant modification up to 12 months after 
commencing operation of the changed source. This provision is 
inconsistent with 40 CFR 70.7(e)(4) and provides less stringent 
application requirements in making a significant modification than for 
making minor modifications or administrative amendments. Maryland 
revised its regulation by deleting the language at COMAR 26.11.03.17F 
which stated that the permittee could submit an application for a 
significant modification up to 12 months after commencing operation of 
the changed source. Maryland added language at COMAR 26.11.03.17F that 
requires that no significant modifications may be made at a facility 
prior to the facility obtaining all permits to construct and approvals 
or a certificate of public convenience and necessity and submitting a 
complete application for a significant modification to an operating 
permit. Further, if no permit to construct or approval is necessary, 
the permittee may not make the change until Maryland issues a revised 
part 70 permit that includes the requirements that apply to the 
modification. With these amendments, Maryland's regulations are 
consistent with 40 CFR 70.7(e)(4).
    7. EPA required that the language at COMAR 26.11.03.15B(7) be 
clarified to indicate that all permit modifications for purposes of the 
acid rain portion of the permit shall be governed by regulations 
promulgated under title IV of the act. Maryland modified its regulation 
by deleting COMAR 26.11.03.15B(7). Maryland added language at COMAR 
26.11.03.15C that states that amendments will be consistent with the 
part 70 regulation ``except for a permit modification for the acid rain 
portion of a part 70 permit which is governed by regulations 
promulgated under title IV of the Clear Air Act.'' In addition, COMAR 
26.11.03.01M incorporates by reference

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into its part 70 permitting program, the acid rain program found at 40 
CFR part 72 into its part 70 permitting program and specifically states 
that ``a person who constructs, modifies, or operates, or causes to be 
constructed, modified, or operated an acid rain source...shall comply 
with 40 CFR 72 * * *'' The permit revision regulations found at 40 CFR 
72.80 provide that ``notwithstanding the operating permit revision 
procedures specified in part 70 * * *, the provisions of this subpart 
shall govern revision of any Acid Rain Program permit revision.'' With 
these provisions of the State and federal regulations, Maryland's 
regulations are consistent with 40 CFR 70.7(d) and (e).
    8. COMAR 26.11.03.11 afforded EPA a thirty day opportunity to 
comment on the proposed decision of an administrative law judge prior 
to Maryland's issuance of a final decision. It was not clear to EPA 
that in the event that Maryland issues a final decision which modifies 
conditions in the final permit under a contested case decision, that 
that modification would follow State requirements at COMAR 26.11.03.09, 
.16 and .17 which require Maryland to provide EPA with an additional 45 
day period in which to review and comment on the final permit. Maryland 
revised its regulation at COMAR 26.11.03.11 to change EPA's review time 
of any permit modification proposed through a contested case hearing 
from 30 days to 45 days. In addition, Maryland provided an Attorney 
General's opinion, dated May 20, 2002, that states that ``a final 
decision pursuant to COMAR 26.11.03.11E which makes significant or 
minor modifications to a challenged title V permit is subject to the 
review and comment provisions in regulations .09B, .16F, and .17D. 
Therefore, EPA must be provided with a 45-day review and comment period 
prior to issuance of a final decision which makes significant or minor 
modifications to the permit.'' With this regulation revision and the 
amended Attorney General's opinion, Maryland's regulations are 
consistent with the part 70 program.
    9. Maryland's part 70 program submitted in 1995 did not include a 
review from its Attorney General that the State has the necessary legal 
authority to implement and enforce the federal requirements for 
hazardous air pollutants. Maryland has submitted an Attorney General's 
opinion, signed October 9, 2001, that affirms that the laws of Maryland 
provide the necessary legal authority to implement and enforce 40 CFR 
part 63 National Emission Standards for Hazardous Pollutants for all 
major and area sources subject to part 63 standards. With this Attorney 
General's opinion, Maryland's regulations are consistent with the part 
70 program.

What Other Changes to Maryland's Part 70 Program Were Submitted to EPA?

    1. Maryland regulation at COMAR 26.11.02.01.C defined major sources 
as those that emit or have the potential to emit 100 tons per year of 
any regulated (emphasis added) air pollutant. In contrast, EPA's 
definition of a major source at 40 CFR 70.2 is that source that emits 
or has the potential to emit 100 tons per year of any air pollutant. To 
clearly indicate that Maryland's definition of a major source is 
equivalent to the federal definition, the State revised COMAR 
26.11.02.01.C. by deleting the word ``regulated'' from its definition 
of a major source. This revision is consistent with the part 70 
program.
    2. Maryland regulation at COMAR 26.11.03.01.B(4) exempted from part 
70 requirements ``a source that is not subject to an applicable 
requirement of the Clean Air Act.'' Federal regulations found at part 
70 do not provide for such an exemption. To closely mirror the part 70 
regulations, Maryland deleted the exemption from its regulation. This 
revision is consistent with the part 70 regulations.
    3. Maryland regulation at COMAR 26.11.03.18.A provided that a 
permittee may make a change to a permitted source without obtaining a 
revision to the part 70 permit, although the change would otherwise 
violate the federally enforceable conditions of the part 70 permit. 
(emphasis added.) The emphasized language seems to allow changes at a 
source that might violate the conditions of the part 70 permit, even 
though subsections 1 through 8 of COMAR 26.11.03.18A contains 
provisions to prevent any such violation. For clarity purposes, the 
language was deleted from COMAR 26.11.03.18.A. This deletion is 
consistent with the part 70 program.
    4. Maryland added language at COMAR 26.11.02.16.A(2)(a), 
26.11.02.19.A, 26.11.03 to clarify that it has authority to assess 
permit fees for Title V sources whether the sources are subject to part 
70 or 40 CFR part 71. These permit revisions are consistent with the 
part 70 program.
    5. Regulations at COMAR 26.11.03.19.D(1) require the permittee to 
keep a record describing ``changes made at the source that result in 
emissions of a regulated (emphasis added) air pollutant subject to an 
applicable requirements of the Clean Air Act.'' Maryland deleted the 
word ``regulated'' from COMAR 26.11.03.19.D(1) to clarify that the 
permittee shall keep a record of changes of any air pollutant subject 
to an applicable CAA requirement. This deletion is consistent with the 
part 70 program.
    6. Maryland added regulations at COMAR 26.11.03.01. N which states 
``The owner or operator of a source which a part 70 permit is required 
is subject to the compliance assurance monitoring requirements under 40 
CFR part 64 which is incorporated by reference.'' This amendment 
ensures compliance assurance monitoring is a requirement when 
applicable in a part 70 permit. This addition is consistent with the 
part 70 program.

What Action Is Being Taken by EPA?

    EPA has reviewed the program revisions which include regulatory 
amendments adopted on June 08, 2001 and a statutory amendment effective 
May 16, 2002 in conjunction with the portion of Maryland's operating 
permit program that was earlier approved on an interim basis. Based on 
this review, EPA has determined that the revisions to Maryland's 
operating permit program adequately address the nine deficiencies 
identified by EPA in its July 03, 1996 rule granting interim approval 
and fully satisfy the minimum requirements of 40 CFR part 70 and the 
CAA. Therefore, EPA is proposing to fully approve the Maryland Title V 
operating permit program in accordance with 40 CFR 70.4(e). In 
addition, EPA has reviewed the regulatory amendments adopted November 
06, 2001. EPA has determined that these additional amendments fully 
meet the minimum requirements of 40 CFR part 70 and the CAA and is 
proposing to approve the additional amendments. Interested members of 
the public may comment on the changes, as described above.

Administrative 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 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 rule will not have a significant economic impact on a substantial 
number of small entities under the Regulatory Flexibility

[[Page 57500]]

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). This proposed rule also does 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), nor will it 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 CAA. This rule also is not subject 
to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is 
not economically significant.
    In reviewing State operating permit program submissions, EPA's role 
is to approve State choices, provided that they meet the criteria of 
the CAA. 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 an operating permit program for 
failure to use VCS. It would thus be inconsistent with applicable law 
for EPA, when it reviews an operating permit program submission, to use 
VCS in place of an operating permit program submission that otherwise 
satisfies the provisions of the CAA. 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, proposing to approve the operating permit program for 
the State of Maryland, 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 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

    Dated: September 4, 2002.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. 02-23081 Filed 9-9-02; 8:45 am]
BILLING CODE 6560-50-P