[Federal Register Volume 72, Number 147 (Wednesday, August 1, 2007)]
[Rules and Regulations]
[Pages 41891-41894]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-14773]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2005-MD-0002; FRL-8447-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; Clarification of Visible Emissions Exceptions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision

[[Page 41892]]

submitted by the State of Maryland. This revision consists of 
clarifications to the exception provisions of the Maryland visible 
regulations.

DATES: Effective Date: This final rule is effective on August 31, 2007.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2005-MD-0002. All documents in the docket are listed 
in the http://www.regulations.gov Web site. Although listed in the 
electronic docket, some information is not publicly available, i.e., 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through http://www.regulations.gov or in hard copy 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. Copies of the State submittal are available at the 
Maryland Department of the Environment, 1800 Washington Boulevard, 
Suite 705, Baltimore, Maryland 21230.

FOR FURTHER INFORMATION CONTACT: Linda Miller, (215) 814-2068, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On December 1, 2003, the State of Maryland submitted a formal SIP 
revision (03-10) that clarifies Maryland's federally-approved 
general visible emissions (VE) regulations, including those related to 
specific source categories. The revised language will ensure that 
sources correctly interpret the exception provisions provided in those 
regulations. On April 26, 2005 (70 FR 21337), EPA published a direct 
final rule (DFR) approving revisions to Maryland's SIP pertaining to 
its VE regulations.
    An explanation of the CAA's requirements and EPA's rationale for 
approving this SIP revision were provided in the DFR and will not be 
restated here. In accordance with direct final rulemaking procedures, 
on April 26, 2005 (70 FR 21387), EPA also published a companion notice 
of proposed rulemaking (NPR) for this SIP revision inviting interested 
parties to comment on the DFR. Timely adverse comments were submitted 
on EPA's April 26, 2005 DFR.
    On June 27, 2005 (70 FR 36844), due to the receipt of adverse 
comments submitted in response to the DFR, EPA published a withdrawal 
of the DFR. A summary of those comments and EPA's responses are 
provided in Section II of this document.

II. Public Comment and EPA Response

    Comment: EPA received the same comment on behalf of two commenters. 
The commenters state that the federal new source performance standards 
(NSPS) and national emission standards for hazardous air pollutants 
(NESHAPs) regulations allow exceedance of their respective opacity 
standards for up to three hours per occurrence during periods of 
startup, shutdown and repair. These federal regulations require the 
installation of continuous opacity monitors (COM). The commenters claim 
that air pollution control equipment on certain municipal waste 
combustion (MWC) sources cannot achieve the visible emissions exception 
requirements as stated in Maryland's clarified visible emissions rule 
due to the occasional formation of ``condensed'' plumes after emissions 
exit the stack, as a result of upset conditions that may occur during 
the operation of emission control devices used to reduce nitrogen 
oxides (NOX) emissions. The commenters believe that 
Maryland's regulations regarding VE exceptions should be revised to be 
consistent with the existing federal NSPS and NESHAP regulations for 
MWCs.
    Response: EPA understands that the VE requirements established in 
Maryland's regulations differ from those established in the NSPS and 
NESHAP regulations that currently apply to MWCs. States have frequently 
used VE limits as part of their efforts to attain the NAAQS. Under the 
CAA's bifurcated scheme, the State is responsible for choosing how a 
source must be regulated for purposes of attaining the NAAQS and EPA's 
role is limited in reviewing the State's choice to ensure it meets the 
minimum statutory requirements. Here, the commenter is not claiming 
that the regulations do not meet the statutory minimum, but rather that 
Maryland is seeking to require more than the minimum statutory 
requirements. The CAA is based upon ``cooperative federalism,'' which 
contemplates that each State will develop its own SIP, and that States 
retain a large degree of flexibility in choosing which sources to 
control and to what degree. EPA must approve a State's plan if it meets 
the ``minimum requirements of the CAA. Union Elec. Co. v. EPA, 427 U.S. 
246, 264-266 (1976).

III. Final Action

    EPA is approving revisions to the Maryland VE exception provisions 
as a revision to the Maryland SIP.

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 (Pub. L. 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 
requirement, 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

[[Page 41893]]

Risks'' (62 FR 19885, April 23, 1997), because it approves a state rule 
implementing a Federal standard.
    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 October 1, 2007. 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 to approve revisions to the Maryland 
regulations which clarify the visible emissions exception provisions 
may not be challenged later in proceedings to enforce its 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, Particulate 
matter, Reporting and recordkeeping requirements.

    Dated: July 19, 2007.
William T. Wisniewski,
Acting 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. In Sec.  52.1070, the table in paragraph (c) is amended by revising 
the entries for COMAR 26.11.06.02, 10.18.08 (Title), 10.18.08.04, 
26.11.09.05, and 26.11.10.03 to read as follows:


Sec.  52.1070  Identification of plan.

* * * * *
    (c) EPA approved regulations.

                                                      EPA-Approved Regulations in the Maryland SIP
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  Code of Maryland administrative                                 State
    regulations (COMAR) citation          Title/subject      effective date     EPA approval date     Additional explanation/citation at 40 CFR 52.1100
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
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                                           26.11.06 General Emission Standards, Prohibitions, and Restrictions
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
26.11.06.02 [Except: .02A(1)(e),     Visible Emissions.....        11/24/03  08/01/07 [Insert page   Revised paragraph 26.11.02.02A(2).
 (1)(g), (1)(h), (1)(i)].                                                     number where the
                                                                              document begins].
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        10.18.08/26.11.08 Control of Incinerators
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
10.18.08.04/26.11.08.04............  Visible Emissions.....        11/24/03  08/01/07 [Insert page   Revised COMAR citation; revised paragraph
                                                                              number where the        26.11.08.04C.
                                                                              document begins].
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
              26.11.09 Control of Fuel-Burning Equipment and Stationary Internal Combustion Engines, and Certain Fuel-Burning Installations
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
26.11.09.05........................  Visible Emissions.....        11/24/03  08/01/07 [Insert page   Revised paragraph 26.11.09.05A(3).
                                                                              number where the
                                                                              document begins].
 

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                                                                      * * * * * * *
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                                               26.11.10 Control of Iron and Steel Production Installations
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                                                                      * * * * * * *
26.11.10.03........................  Visible Emissions.....        11/24/03  08/01/07 [Insert page   Revised paragraph 26.11.10.03A(2).
                                                                              number where the
                                                                              document begins].
 
                                                                      * * * * * * *
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 [FR Doc. E7-14773 Filed 7-31-07; 8:45 am]
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