[Federal Register Volume 73, Number 139 (Friday, July 18, 2008)]
[Rules and Regulations]
[Pages 41268-41271]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-16272]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2007-1120; FRL-8693-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; Reasonably Available Control Technology Requirements for 
Marine Vessel and Barge Loading

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the State of Maryland. This revision establishes and 
requires reasonably available control technology (RACT) for the control 
of volatile organic compound (VOC) emissions from marine vessel and 
barge loading. EPA is approving this SIP revision in accordance with 
the Clean Air Act (CAA).

DATES: Effective Date: This final rule is effective on August 18, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2007-1120. 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

[[Page 41269]]

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: Gobeail McKinley, (215) 814-2033, or 
by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On April 15, 2008 (73 FR 20234), EPA published a notice of proposed 
rulemaking (NPR) for the State of Maryland. The NPR proposed approval 
of the control of VOC emissions from marine vessel and barge loading by 
establishing RACT requirements. The formal SIP revision was submitted 
by the Maryland Department of the Environment (MDE) on October 24, 
2007.

II. Summary of SIP Revision

    The Maryland Department of the Environment submitted this revision 
to the SIP to establish reasonably available control technology 
requirements for marine vessel and barging loading. The SIP revision 
includes amendments to Regulation .01 and adoption of new Regulation 
.08 under COMAR 26.11.13 Control of Gasoline and Volatile Organic 
Compound Storage and Handling. The amendment to COMAR 26.11.13.01 
consists of a new definition that defines a marine vessel as any tank 
ship or barge that transports VOCs in bulk as cargo. The new regulation 
COMAR 26.11.13.08 requires owners or operators of barge loading 
facilities in Baltimore City, Anne Arundel, Baltimore, Calvert, 
Carroll, Cecil, Charles, Frederick, Harford, Howard, Montgomery, and 
Prince George's Counties to reduce capture of VOC vapors by 90 percent 
if emissions from the barge loading equal or exceed 25 tons per year 
(TPY). In the rest of the state (Allegheny, Caroline, Dorchester, 
Garrett, Kent, Queen Anne's, St. Mary's, Somerset, Talbot, Washington, 
Wicomico, and Worchester Counties), controls are required if emissions 
are equal to or exceed 50 TPY.
    The rationale for EPA's proposed action are explained in the NPR 
and will not be restated here. On April 15, 2008, EPA received a 
comment on the April 15, 2008 NPR. A summary of the comment submitted 
and EPA's response is provided in section III of this document.

III. Summary of Public Comments and EPA Response

    Comment: A single commenter questions why the state is establishing 
a RACT standard for marine vessel and barge loading instead of a Best 
Available Control Technology (BACT) or Maximum Achievable Control 
Technology (MACT) standard. The commenter also claims that established 
BACT and MACT standards would achieve greater control than the proposed 
RACT standard, though at cost ranging from somewhat less than estimated 
by the state.
    Response: These amendments, submitted by the State of Maryland 
establishing RACT requirements for VOC emissions from marine vessel and 
barge loading, are being approved by EPA because EPA has determined 
that they properly represent RACT for this source category. Since the 
1970's, EPA has consistently interpreted RACT to mean the lowest 
emission limit that a particular source is capable of meeting by the 
application of the control technology that is reasonably available 
considering technological and economic feasibility. See, e.g., 72 FR 
20586 at 20610 (April 25, 2007). Maryland submitted this SIP revision 
request pursuant to the RACT requirements of sections 182 and 184 of 
the CAA. Other provisions of the CAA may require BACT or MACT level 
controls for sources. However, these are generally considered to be 
more stringent than RACT, and thus, the controls necessary to meet BACT 
or MACT requirements may not be the same as controls that would meet 
the RACT requirement.
    Maryland is located in the Ozone Transport Region (OTR) that was 
created by section 184 of the CAA. Section 184(b)(1)(B) of the CAA 
requires that Maryland implement RACT regulations on all VOC sources 
that have the potential to emit 50 TPY or more. In addition, section 
182(b)(2) requires that Maryland implement RACT regulations on all 
major sources of VOC in moderate or above ozone nonattainment areas 
within the State. Major VOC sources are those with the potential to 
emit at least 100 TPY in moderate areas, 50 TPY in serious areas, and 
25 TPY in severe areas.
    BACT, on the other hand, is a case-by-case emissions limitation 
based on the maximum degree of reduction of a regulated pollutant 
emitted from a major new source or a major modification of an existing 
source, as determined by application of EPA's Prevention of Significant 
Deterioration regulations, 40 CFR 52.21, which are authorized by 
sections 160-169 of the CAA. BACT, therefore, is determined by a 
different standard than RACT and does not apply to unmodified existing 
sources that would be covered by the RACT rule.
    Similarly, MACT is also a distinct legal requirement and is 
determined through a different standard than RACT. MACT standards are 
designed to reduce hazardous air pollutants emissions to a maximum 
achievable degree, taking into account factors such as cost and energy 
requirements, as set forth at 40 CFR 63.41, and as authorized by 
section 112 of the CAA. Although EPA has promulgated a standard for 
barge loading (40 CFR Part 63 Subpart Y), as with BACT, not every 
source required to be covered by the Maryland RACT rule would be 
required to have a MACT limit, and the definition of MACT takes into 
account factors that are not required for RACT.
    In sum, RACT, MACT, and BACT are potentially overlapping emissions 
limitation requirements, authorized by different provisions of the CAA, 
directed to remedy distinct problems (RACT, in this case, to help 
attain the federal ozone standard by controlling emissions of VOC, an 
ozone precursor; BACT to prevent significant deterioration in areas 
attaining a federal standard through permitting of new and modified 
sources; and MACT to control emissions of listed hazardous air 
pollutants), covering different (but potentially overlapping) subsets 
of sources, and based on different control standards.
    The commenter's failure to document and support either cost data 
provided in the comment, or the methodology the commenter used to 
determine BACT/MACT, prevents EPA from ascertaining whether or not the 
commenter has properly determined BACT/MACT for these operations, the 
relative costs compared to the RACT adopted by the State, where the 
cost data supplied in the comment comes from, or if it is valid. Mere 
assertions, without analysis, that EPA's proposal is wrong are an 
insufficient basis for EPA to disapprove this SIP. See International 
Fabricare Inst. v. EPA, 972 F.2d 384 (D.C.Cir. 1992).
    EPA has evaluated Maryland's SIP submittal and determined that the 
Maryland regulation meets the requirements for RACT. Because this SIP 
revision meets the criteria for RACT, as well as the other 
approvability criteria, EPA must approve this SIP revision. See section 
110(k)(3) of the CAA, 42 U.S.C. 7410(k)(3); see also, Union Elec. Co. 
v. EPA, 427 U.S. 246, 265, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976).

III. Final Action

    EPA is approving the control of volatile organic compound emissions 
by establishing reasonably available control technology requirements 
for marine vessel and barge loading as a revision to

[[Page 41270]]

the Maryland SIP which was submitted on October 24, 2007. This 
regulation will result in the reduction of VOC emissions from the 
affected sources.

IV. Statutory and Executive Order Reviews

A. General Requirements

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

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 action 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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action 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 September 16, 2008. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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 pertaining to Maryland's amendments 
to the control of volatile organic compound emissions by establishing 
RACT requirements for marine vessel and barge loading 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, Intergovernmental relations, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: July 2, 2008.
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. In Sec.  52.1070, the table in paragraph (c) is amended by revising 
the entry for COMAR 26.11.13.01 and adding the entry for COMAR 
26.11.13.08 to read as follows:


Sec.  52.1070  Identification of plan.

* * * * *
    (c)* * *

[[Page 41271]]



                                                      EPA-Approved Regulations in the Maryland SIP
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  Code of Maryland administrative                               State                                              Additional explanation/citation at 40
   regulations (COMAR) citation         Title/subject      effective date             EPA approval date                         CFR 52.1100
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                                  COMAR 26.11.13 Control of Gasoline and Volatile Organic Compound Storage and Handling
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                                                                      * * * * * * *
26.11.13.01.......................  Definitions..........         10/8/07  07/18/08 [Insert page number where the
                                                                            document begins].
26.11.13.08.......................  Control of VOC                10/8/07  07/18/08 [Insert page number where the  New regulation
                                     Emissions from                         document begins].
                                     Marine Vessel
                                     Loading.
 
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 [FR Doc. E8-16272 Filed 7-17-08; 8:45 am]
BILLING CODE 6560-50-P