[Federal Register Volume 74, Number 56 (Wednesday, March 25, 2009)]
[Rules and Regulations]
[Pages 12556-12559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6654]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2009-0058; FRL-8780-2]


Approval and Promulgation of Air Quality Implementation Plan; 
Maryland; Reasonably Available Control Technology Requirements for 
Volatile Organic Compounds

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking final action to fully approve revisions to the 
Maryland State Implementation Plan (SIP). The revisions pertain to 
Maryland's major source volatile organic compound (VOC) reasonable 
available control technology (RACT) regulation. EPA is converting the 
conditional limited approval status of Maryland's VOC RACT regulations 
to a full approval because EPA has approved all of the case-by-case 
RACT determinations submitted by Maryland pursuant to the generic 
provisions of its VOC RACT regulation as well as all of the RACT 
requirements for categories of VOC sources submitted by Maryland in 
accordance with the requirements of the Clean Air Act (CAA).

DATES: This rule is effective on May 26, 2009 without further notice, 
unless EPA receives adverse written comment by April 24, 2009. 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: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2009-0058 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: [email protected].
    C. Mail: EPA-R03-OAR-2009-0058, Cristina Fernandez, Chief, Air 
Quality Planning Branch, Mail code 3AP21, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

[[Page 12557]]

    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2009-0058. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. 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. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., 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 in http://www.regulations.gov or in hard copy 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 Maryland Department of the 
Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland, 
21230.

FOR FURTHER INFORMATION CONTACT: Jacqueline Lewis, (215) 814-2037, or 
by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Under section 184 of the CAA, RACT as specified in sections 
182(b)(2) and 182(f) applies throughout the ozone transport region 
(OTR). The entire State of Maryland is located within the OTR. 
Therefore, RACT is applicable statewide in Maryland. The major source 
size generally is determined by the classification of the area in which 
the source is located. However, for areas located in the OTR, the major 
source size for stationary sources of VOCs is 50 tons per year (tpy) 
unless the area's ozone classification prescribes a lower major source 
threshold. The VOC RACT regulations that apply to source categories of 
VOCs are generally those VOC RACT regulations adopted by a state based 
upon Control Technique Guideline (CTG) documents issued by EPA. The 
CTGs provide ``presumptive RACT emission limitations'' for categories 
of major VOC sources. Major sources of VOC that are subject to RACT, 
but that are not covered by a regulation adopted by a state pursuant to 
a CTG are referred to as non-CTG VOC RACT sources. The State of 
Maryland was required to adopt and submit as SIP revisions VOC RACT 
regulations for the CTG documents issued between November 15, 1990 and 
the date of 1-hour ozone attainment, and the CTG documents issued prior 
to November 15, 1990. For major non-CTG VOC sources (not otherwise 
already subject to RACT pursuant to a source category regulation under 
the Maryland SIP), the State's VOC RACT regulations contain a 
``generic'' RACT provision. A generic RACT regulation is one that does 
not, itself, specifically define RACT for a source or source 
categories, but instead allows for case-by-case RACT determinations. 
The generic provisions of Maryland's VOC RACT regulation allow for 
Maryland Department of the Environment (MDE) to make case-by-case RACT 
determinations that are then to be submitted to EPA for approval as 
revisions to the Maryland SIP. Lastly, the Maryland SIP includes RACT 
regulations submitted by Maryland and approved by EPA for categories of 
VOC sources not covered by a CTG.
    On April 5, 1991, the State of Maryland formally submitted 
amendments to its air quality regulations to EPA as a SIP revision. 
Among the amendments submitted were revisions to Maryland Code of 
Regulations (COMAR) 26.11.06.06 for Maryland's minor VOC source 
requirements and the addition of COMAR 26.11.19.02G, which requires 
RACT for major sources of VOC that are not covered by Maryland's 
category specific VOC RACT regulations.
    The April 5, 1991 submittal was amended on June 8, 1993 to 
establish statewide applicability for COMAR 26.11.19.02G and to lower 
the RACT applicability threshold for non-CTG sources of VOC in 
Maryland. The expanded geographic applicability of COMAR 26.11.06.06 
did result in the regulation of VOC sources which were previously not 
regulated. However, the MDE made other specific amendments to COMAR 
26.11.06.06, found at 26.11.06.06A which narrowed the applicability of 
COMAR 26.11.06.06B such that certain sources in Maryland's pre-
enactment nonattainment areas that were previously subject to COMAR 
26.11.06.06B were no longer covered by any enforceable emissions limit 
until such time as Maryland approved case-by-case VOC RACT requirements 
for them pursuant to the generic RACT provisions of COMAR 26.11.19.02G. 
This resulted in a temporary lapse of coverage for previously regulated 
non-CTG major VOC sources in the State of Maryland.
    EPA proposed conditional approval of Maryland's April 5, 1991 and 
June 8, 1993 submittals pertaining to COMAR 26.11.19.02G and COMAR 
26.11.06.06 on March 1, 1996 (61 FR 8009). On September 4, 1998, EPA 
withdrew the March 1, 1996 proposed conditional approval, and published 
a direct final rule (63 FR 47174) granting a conditional limited 
approval of the revisions to COMAR 26.11.19.02G and COMAR 26.11.06.06. 
In the September 4, 1998 direct final rule, EPA stated that the 
conditional nature of its approval would be satisfied once the MDE 
either (1) certifies that it has submitted case-by-case RACT proposals 
for all sources subject to the RACT requirements currently known to 
MDE; or (2) demonstrates that the emissions from any remaining subject 
sources represent a de minimus level of emissions as defined in the 
September 4, 1998 rulemaking. The MDE was to satisfy the terms of the 
conditional approval by a date certain no later than 12 months after 
the effective date of EPA's final conditional approval. EPA also stated 
that the limited approval status would be converted to full approval 
once EPA had approved all of the case-by-case RACT requirements 
submitted by MDE as SIP revisions.

[[Page 12558]]

    On December 19, 2008, MDE submitted a letter to EPA, certifying 
that it had met the terms and conditions imposed by EPA in the 
September 4, 1998 (63 FR 47174) conditional limited approval. The MDE 
stated that it had fulfilled the terms and conditions of the 
conditional limited approval by submitting case-by-case VOC RACT 
facility determinations, category-specific VOC RACT and generic VOC 
RACT regulations for approval as SIP revisions.
    EPA has reviewed the Maryland SIP and determined that MDE has 
submitted RACT regulations for the sources covered by the CTG documents 
issued between November 15, 1990 and the date of 1-hour ozone 
attainment, and the CTG documents issued prior to November 15, 1990; 
case-by-case RACT requirements for three facilities under its generic 
VOC RACT rule; and category-specific VOC RACT regulations for the 
remaining VOC sources located in the State of Maryland. EPA has 
approved all of these Maryland submissions as SIP revisions. (See 40 
CFR Part 52.1070 for the list and Federal Register citations of all 
EPA-approved regulations and requirements of the Maryland SIP.) For 
these reasons EPA is converting the conditional limited approval status 
of COMAR 26.11.19.02G and COMAR 26.11.06.06 to a full approval.
    Because EPA published its final rule granting conditional limited 
approval of COMAR 26.11.19.02G and COMAR 26.11.06.06 on September 4, 
1998 (63 FR 47174) and that final rule had an effective date of 
November 3 1998, the letter submitted by MDE on December 19, 2008 
satisfying the conditional nature EPA's approval should have been 
submitted by MDE no later than November 3, 1998. Under 110(k)(4) of the 
CAA, unless the State satisfies the terms of a conditional approval of 
a SIP submission within a date certain which may not exceed more than 
12 months from the effective date of the conditional approval, EPA is 
to treat the conditional approval as a disapproval. Only recently has 
EPA realized that MDE did not submit the letter to EPA certifying that 
it had met the terms and conditions imposed by EPA in the September 4, 
1998 (63 FR 47174) conditional limited approval rule within the 
specified 12-month time period from the November 3, 1998 effective date 
of that rule. EPA acknowledges its oversight for not treating the 
September 4, 1998 (63 FR 47174) conditional approval as a disapproval 
for Maryland's failure to satisfy the terms of the conditional approval 
within the one year period of time provided, and for not commencing the 
sanctions clocks such a disapproval would have engendered pursuant to 
Section 179 of the CAA. However, at this point in time, given that MDE 
has submitted and EPA has approved as SIP revisions VOC RACT 
requirements for all major sources of VOC in that State of Maryland as 
required by the CAA, there is no purpose served in treating the 
September 4, 1998 conditional as a disapproval. If EPA had treated its 
conditional approval as disapproval and had commenced the sanctions 
clocks or imposed sanctions, the remedy to halt the clocks or lift the 
sanctions would have been for Maryland to submit and for EPA to approve 
as SIP revisions RACT for all major VOC sources in Maryland. That 
remedy has been fulfilled.

II. Final Action

    EPA is converting its conditional limited approval of revisions to 
COMAR 26.11.19.02G and COMAR 26.11.06.06 to a full approval because 
Maryland has satisfied the terms and conditions imposed in EPA's 
conditional limited approval published on September 4, 1998 (63 FR 
47174) and because EPA has approved all of the case-by-case RACT 
determinations made by MDE under Maryland's generic VOC RACT rule. EPA 
has reviewed the Maryland SIP and determined that MDE has submitted 
RACT regulations for the sources covered by the CTG documents issued 
between November 15, 1990 and the date of 1-hour ozone attainment, and 
the CTG documents issued prior to November 15, 1990; case-by-case RACT 
requirements for three facilities under its generic VOC RACT rule; and 
category-specific VOC RACT regulations for the remaining VOC sources 
located in the State of Maryland. EPA has approved all of these 
Maryland submissions as SIP revisions in accordance with the 
requirements of section 110 the CAA.
    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 26, 2009 without further 
notice unless EPA receives adverse comment by April 24, 2009. 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.

III. 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).

[[Page 12559]]

    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 May 26, 2009. 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. Parties with objections to this direct final 
rule are encouraged to file a comment in response to the parallel 
notice of proposed rulemaking for this action published in the proposed 
rules section of today's Federal Register, rather than file an 
immediate petition for judicial review of this direct final rule, so 
that EPA can withdraw this direct final rule and address the comment in 
the proposed rulemaking. This action converting the conditional limited 
approval to a full approval of revisions to COMAR 26.11.19.02G and 
COMAR 26.11.06.06 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, Volatile organic 
compounds.

    February 24, 2009.
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 entry for COMAR 26.11.19.02G to read as follows:


Sec.  52.1070  Identification of plan.

* * * * *
    (c) * * *

                                  EPA-Approved Regulations in the Maryland SIP
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     Code of  Maryland                                  State                             Additional explanation/
administrative  regulations       Title/subject       effective      EPA approval date      citation at 40 CFR
      (COMAR)  citation                                  date                                     52.1100
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                           26.11.19 Volatile Organic Compounds from Specific Processes
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26.11.19.02................  Applicability,             05/04/98  March 25, 2009 [Insert  (c) (174), (c) (175).
                              Determining               12/10/01   page number where the   On 2/27/03 (68 FR
                              Compliance,                          document begins].       9012), EPA approved a
                              Reporting, and                                               revised rule citation
                              General Requirements.                                        with a State
                                                                                           effective date of 5/8/
                                                                                           95 [(c)(182)(i)(D)].
 
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                                                  * * * * * * *
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* * * * *


Sec.  52.1072  [Amended]

0
3. In Sec.  52.1072, the table in paragraph (d) is removed and 
reserved.


Sec.  52.1073  [Amended]

0
4. In Sec.  52.1073, the table in paragraph (e) is removed and 
reserved.
 [FR Doc. E9-6654 Filed 3-24-09; 8:45 am]
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