[Federal Register Volume 69, Number 55 (Monday, March 22, 2004)]
[Rules and Regulations]
[Pages 13236-13239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6305]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MD145/154-3104; FRL-7634-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; Nitrogen Oxides Allowance Allocations for 2006-2007, and 
Revisions to Set-Aside Requirements

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 consist of the 
Nitrogen Oxides (NOX) allowance allocations for ozone 
seasons 2006 and 2007, in accordance with Maryland's approved 
NOX SIP Call program, and establishes a set aside pool 
calculated as a percentage of the state's trading budget. EPA is 
approving these revisions to Maryland's NOX Reduction and 
Trading Program in accordance with the requirements of the Clean Air 
Act.

DATES: This rule is effective on May 21, 2004, without further notice, 
unless EPA receives adverse written comment by April 21, 2004. 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: Comments may be submitted either by mail or electronically. 
Written comments should be mailed to Makeba Morris, Chief, Air Quality 
Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, 
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. 
Electronic comments should be sent either to [email protected] or 
to http://www.regulations.gov, which is an alternative method for 
submitting electronic comments to EPA. To submit comments, please 
follow the detailed instructions described in Part III of the 
SUPPLEMENTARY INFORMATION section. 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, 1301 Constitution Avenue, NW., Room B108, 
Washington, DC 20460; and the Maryland Department of the Environment, 
1800

[[Page 13237]]

Washington Boulevard, Suite 705, Baltimore, Maryland 21230.

FOR FURTHER INFORMATION CONTACT: Marilyn Powers, (215) 814-2308, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Maryland's NOX Reduction and Trading Program under COMAR 
26.11.29 and 26.11.30 was approved by EPA as meeting the requirements 
of the NOX SIP Call on January 10, 2001 (66 FR 1866). The 
approved program contains NOX reduction requirements 
beginning May 1, 2003, and allowance allocations for affected trading 
sources for ozone seasons 2003 through 2005. Thereafter, Maryland's 
approved rule requires that allocations be updated, three years in 
advance, for every two year period, starting with 2006 and 2007. This 
SIP revision consists of Maryland's allocation update for 2006 and 
2007, and includes changes to the requirements pertaining to its set 
aside pool.

II. Summary of SIP Revision

    On April 24, 2003, July 7, 2003, and December 1, 2003, the Maryland 
Department of the Environment (MDE) submitted formal revisions to its 
SIP. The revisions consist of NOX allowance allocations for 
the 2006 and 2007 ozone seasons, and revisions affecting Maryland's set 
aside pool for new sources and clean air projects. The MDE's initial 
submission of April 24, 2003, consists of revisions to COMAR 
26.11.30.09, Allocation of Allowances. The MDE's letter of July 7, 
2003, consists of an administrative change to correct an allocation for 
one source. It amends Mirant Dickerson's Unit 3 allocation 
from 410 to 404 tons of NOX. The revisions consisted of 
allocations for the control period 2006 and 2007 for each of the 
affected sources for which allocations were provided in the initial 
control period (2003 through 2005). The allocations for electric 
generating units (EGUS) were derived using each source's average actual 
heat input from the 2000 and 2001 ozone seasons multiplied by an 
emission rate of 0.15 pounds NOX/MMBTU, adjusted as a 
percentage of the total budget, with the exception of one source which 
received allocations based on its lower, permitted emission rate. The 
allocations for non-electric generating units (non-EGUS) are unchanged 
from the initial control period. For most sources the 2006 and 2007 
allocations do not differ significantly from the initial 3-year 
allocations.
    The MDE's submission of December 1, 2003, consists of revisions to 
COMAR 26.11.29.09, Requirements for New NOX Affected Trading 
Sources and Set-Aside Pool. These revisions clarify that the set aside 
pool continues beyond 2005, and establish the set aside pool calculated 
as 5 percent of the state's trading budget for each ozone season 
(obviating the need to submit a SIP revision for the set-aside every 
time future allocations are made). Also, the revisions allow new 
sources to secure allowances at the end of each ozone season, as is 
allowed for existing sources. Together, these submissions establish 
allocations that maintain Maryland's NOX SIP statewide 
budget. They are approvable as satisfying the NOX SIP Call 
requirement that Maryland update its allowance allocations for the 2006 
and 2007 ozone seasons.

III. Final Action

    EPA is approving the SIP revisions submitted by MDE on April 24, 
2003, July 7, 2003, and December 1, 2003. The revisions consist of 
NOX allowance allocations for the 2006 and 2007 ozone 
seasons, and revisions affecting Maryland's set aside pool for new 
sources and clean air projects.
    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 May 21, 2004, without further 
notice unless EPA receives adverse comment by April 21, 2004. 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. Please note that if EPA receives adverse comment on an 
amendment, paragraph, or section of this rule and if that provision may 
be severed from the remainder of the rule, EPA may adopt as final those 
provisions of the rule that are not the subject of an adverse comment.
    You may submit comments either electronically or by mail. To ensure 
proper receipt by EPA, identify the appropriate rulemaking 
identification number MD145/154-3104 in the subject line on the first 
page of your comment. Please ensure that your comments are submitted 
within the specified comment period. Comments received after the close 
of the comment period will be marked ``late.'' EPA is not required to 
consider these late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket. If EPA cannot 
read your comment due to technical difficulties and cannot contact you 
for clarification, EPA may not be able to consider your comment.
    i. E-mail. Comments may be sent by electronic mail (e-mail) to 
[email protected], attention MD145/154-3104. EPA's e-mail system is 
not an ``anonymous access'' system. If you send an e-mail comment 
directly without going through Regulations.gov, EPA's e-mail system 
automatically captures your e-mail address. E-mail addresses that are 
automatically captured by EPA's e-mail system are included as part of 
the comment that is placed in the official public docket.
    ii. Regulations.gov. Your use of Regulation.gov is an alternative 
method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov, then select ``Environmental Protection Agency'' at 
the top of the page and use the ``go'' button. The list of current EPA 
actions available for comment will be listed. Please follow the online 
instructions for submitting comments. The system is an ``anonymous 
access'' system, which means EPA will not know your identity, e-mail 
address, or other contact information unless you provide it in the body 
of your comment.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified in the ADDRESSES 
section of this document. These electronic submissions will be accepted 
in WordPerfect, Word or ASCII file format. Avoid the use of special 
characters and any form of encryption.
    2. By Mail. Written comments should be addressed to the EPA 
Regional office

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listed in the ADDRESSES section of this document.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing at the EPA Regional Office, 
as EPA receives them and without change, unless the comment contains 
copyrighted material, confidential business information (CBI), or other 
information whose disclosure is restricted by statute. When EPA 
identifies a comment containing copyrighted material, EPA will provide 
a reference to that material in the version of the comment that is 
placed in the official public rulemaking file. The entire printed 
comment, including the copyrighted material, will be available at the 
Regional Office for public inspection.

Submittal of CBI Comments

    Do not submit information that you consider to be CBI 
electronically to EPA. You may claim information that you submit to EPA 
as CBI by marking any part or all of that information as CBI (if you 
submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is CBI). Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the official public regional rulemaking file. If you submit the copy 
that does not contain CBI on disk or CD ROM, mark the outside of the 
disk or CD ROM clearly that it does not contain CBI. Information not 
marked as CBI will be included in the public file and available for 
public inspection without prior notice. If you have any questions about 
CBI or the procedures for claiming CBI, please consult the person 
identified in the FOR FURTHER INFORMATION CONTACT section.

Considerations When Preparing Comments to EPA

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate 
regional file/rulemaking identification number in the subject line on 
the first page of your response. It would also be helpful if you 
provided the name, date, and Federal Register citation related to your 
comments.

IV. Statutory and Executive Order Reviews

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. 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 May 21, 2004. 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

[[Page 13239]]

shall not postpone the effectiveness of such rule or action. This 
action to approve both the Maryland NOX allowance 
allocations for 2006 through 2007 and the revisions to the set aside 
pool requirements, 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: March 2, 2004.
Donald S. Welsh,
Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart V--Maryland

0
2. Section 52.1070 is amended by adding paragraph (c)(186) to read as 
follows:


Sec.  52.1070  Identification of plan.

* * * * *
    (c) * * *
    (186) Revisions to the Maryland State Implementation Plan submitted 
on April 24, 2003, July 7, 2003, and December 1, 2003 by the Maryland 
Department of the Environment pertaining to the Policies and Procedures 
Relating to Maryland's NOX Reduction and Trading Program, 
and the Nitrogen Oxides Reduction and Trading Program.
    (i) Incorporation by reference.
    (A) Letter of April 24, 2003 from the Maryland Department of the 
Environment transmitting additions, deletions, and revisions to COMAR 
26.11.30 Nitrogen Oxides Reduction and Trading Program, effective April 
28, 2003.
    (1) Revisions to COMAR 26.11.30.09A.
    (2) Deletion of existing COMAR 26.11.30.09B.
    (3) Addition of new COMAR 26.11.30.09B, allocations for control 
periods 2003 through 2007.
    (B) Letter of July 7, 2003 from the Maryland Department of the 
Environment transmitting an administrative correction to COMAR 
26.11.30.09 amending Mirant Dickerson's Unit 3 allocation from 
410 to 404 tons of NOX.
    (C) Letter of December 1, 2003 from the Maryland Department of the 
Environment transmitting additions, deletions, and revisions to COMAR 
26.11.29 NOX Reduction and Trading Program, effective 
November 24, 2003.
    (1) Revisions to COMAR 26.11.29.09 (title), .09A (introductory 
sentence), and .09A(1).
    (2) Addition of COMAR 26.11.29.09A(2) and .09A(3).
    (3) Revisions to COMAR 26.11.29.09B (introductory sentence), 
.09B(1) and .09B(2), establishing the set aside pool at 5 percent of 
the total trading budget.
    (4) Deletion of COMAR 26.11.29.09E and 09F.
    (5) COMAR 26.11.29.09G is renumbered as 26.11.29.09E.
    (ii) Additional Material.
    (A) Remainder of the State submittals pertaining to the revisions 
listed in paragraph (c)(186)(i) of this section.

[FR Doc. 04-6305 Filed 3-19-04; 8:45 am]
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