[Federal Register Volume 74, Number 209 (Friday, October 30, 2009)]
[Rules and Regulations]
[Pages 56117-56120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26090]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2009-0034; FRL-8975-2]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; Clean Air Interstate Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving State Implementation Plan (SIP) revisions 
submitted by the State of Maryland, with the exception of its 2009 
nitrogen oxides (NOX) ozone season and NOX annual 
allocations, its 2009 set-aside allocations and the Compliance 
Supplement Pool (CSP) allocations. The revisions establish budget 
trading programs for nitrogen oxides (NOX) annual, 
NOX ozone season, and sulfur dioxides (SO2) 
annual emissions to address the requirements of EPA's Clean Air 
Interstate Rule (CAIR). Maryland will meet its CAIR requirements by 
participating in the EPA-administered regional cap-and-trade program 
for NOX annual, NOX ozone season, and 
SO2 annual emissions. EPA is determining that the SIP 
revisions fully implement the CAIR requirements for Maryland. Although 
the DC Circuit found CAIR to be flawed, the rule was remanded without 
vacatur and thus remains in

[[Page 56118]]

place. Thus, EPA is continuing to take action on CAIR SIPs as 
appropriate. CAIR, as promulgated, requires States to reduce emissions 
of SO2 and NOX that significantly contribute to, 
or interfere with maintenance of, the national ambient air quality 
standards (NAAQS) for fine particulates and/or ozone in any downwind 
state. CAIR establishes budgets for SO2 and NOX 
for States that contribute significantly to nonattainment in downwind 
States and requires the significantly contributing States to submit SIP 
revisions that implement these budgets. States have the flexibility to 
choose which control measures to adopt to achieve the budgets, 
including participation in EPA-administered cap-and-trade programs 
addressing SO2, NOX annual, and NOX 
ozone season emissions. In the SIP revisions that EPA is approving, 
Maryland will meet CAIR requirements by participating in these cap-and-
trade programs. EPA is approving the SIP revisions, with the exceptions 
noted, as fully implementing the CAIR requirements for Maryland. 
Consequently, this action will also cause the CAIR Federal 
Implementation Plans (CAIR FIPs) concerning SO2, 
NOX annual, and NOX ozone season emissions by 
Maryland sources to be automatically withdrawn.

DATES: Effective Date: The final rule is effective on October 30, 2009.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2009-0034. 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: Marilyn Powers, (215) 814-2308, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What Action Did EPA Propose?
II. Summary of Maryland SIP Revision
III. What Is the Final Action?
IV. What Is the Effective Date?
V. Statutory and Executive Order Reviews

I. What Action Did EPA Propose?

    On August 20, 2009 (74 FR 42038), EPA published a notice of 
proposed rulemaking (NPR) for the State of Maryland. No comments were 
received. The NPR proposed approval of revisions to the Maryland SIP 
that addresses EPA's CAIR requirements. The formal SIP revisions were 
submitted by Maryland on October 24, 2007 and June 30, 2008.

II. Summary of Maryland SIP Revision

    On October 24, 2007, the Maryland Department of the Environmental 
(MDE) submitted a full CAIR SIP revision to meet the requirements of 
CAIR, which was promulgated on May 12, 2005 (70 FR 25162), and 
subsequently revised on April 28, 2006, and December 13, 2006. The SIP 
revision consisted of new Maryland rule COMAR 26.11.28--Clean Air 
Interstate Rule (Maryland revision 07-14). On June 30, 2008, 
MDE submitted a SIP revision that amended Regulations .01 to .07 of 
COMAR 26.11.28 (Maryland revision 08-08). The regulations 
address all the requirements of the 40 CFR part 96 model rules set 
forth in the May 12, 2005 CAIR rulemaking.
    On August 20, 2009 (74 FR 27731), EPA published an NPR to approve 
Maryland's CAIR SIP revisions, with the exception of its 2009 
NOX ozone season and NOX annual allocations, its 
2009 set-aside allocations and the CSP allocations. A detailed 
discussion of the CAIR requirements, the CAIR history (including the 
CAIR remand), Maryland's CAIR submittals, and EPA's rationale for 
approval of Maryland's CAIR SIP revisions may be found in the NPR and 
will not be repeated here.
    EPA notes that, in North Carolina, 531 F.3d at 916-21, the Court 
determined, among other things, that the State SO2 and 
NOX budgets established in CAIR were arbitrary and 
capricious.\1\ However, as discussed above, the Court also decided to 
remand CAIR but to leave the rule in place in order to ``temporarily 
preserve the environmental values covered by CAIR'' pending EPA's 
development and promulgation of a replacement rule that remedies CAIR's 
flaws. North Carolina, 550 F.3d at 1178. EPA had indicated to the Court 
that development and promulgation of a replacement rule would take 
about two years. Reply in Support of Petition for Rehearing or 
Rehearing en Banc at 5 (filed Nov. 17, 2008 in North Carolina v. EPA, 
Case No. 05-1224, D.C. Cir.). The process at EPA of developing a 
proposal that will undergo notice and comment and result in a final 
replacement rule is ongoing. In the meantime, consistent with the 
Court's orders, EPA is implementing CAIR by approving State SIP 
revisions that are consistent with CAIR (such as the provisions setting 
State SO2 and NOX budgets for the CAIR trading 
programs) in order to ``temporarily preserve'' the environmental 
benefits achievable under the CAIR trading programs.
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    \1\ The Court also determined that the CAIR trading programs 
were unlawful (id. at 906-8) and that the treatment of title IV 
allowances in CAIR was unlawful (id. at 921-23). For the same 
reasons that EPA is approving the provisions of Maryland's SIP 
revision that use the SO2 and NOX budgets set 
in CAIR, EPA is also approving, as discussed below, Maryland's SIP 
revision to the extent the SIP revision adopts the CAIR trading 
programs, including the provisions, addressing applicability, 
allowance allocations, and use of title IV allowances.
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III. What Is the Final Action?

    EPA is approving Maryland's CAIR SIP revisions submitted on October 
24, 2007 and June 30, 2008, with the exception of its 2009 
NOX ozone season and NOX annual allocations, its 
2009 set-aside allocations and the CSP allocations. Under the SIP 
revisions, Maryland will participate in the EPA-administered cap-and-
trade programs for NOX annual, NOX ozone season, 
and SO2 annual emissions. The SIP revisions meet the 
applicable requirements in 40 CFR 51.123(o) and (aa), with regard to 
NOX annual and NOX ozone season emissions, and 40 
CFR 51.124(o), with regard to SO2 emissions. As a 
consequence of the SIP approval, the CAIR FIPs for Maryland are 
automatically withdrawn, in accordance with the automatic withdrawal 
provisions of EPA's November 2, 2007 rulemaking (72 FR 62338). The 
automatic withdrawal is reflected in the rule text that accompanies 
this notice and deletes and reserves the provisions in Part 52 that 
establish the CAIR FIPs for Maryland sources.

IV. What Is the Effective Date?

    EPA finds that there is good cause for this approval to become 
effective upon publication because a delayed effective date is 
unnecessary due to the nature of the approval, which allows the State, 
as indicated in the NPR for this rulemaking, to use its own methodology 
for distribution of allowances from its set aside pool. The expedited 
effective date for this action is authorized under both 5 U.S.C. 
553(d)(1), which provides

[[Page 56119]]

that rule actions may become effective less than 30 days after 
publication if the rule ``grants or recognizes an exemption or relieves 
a restriction'' and section 5 U.S.C. 553(d)(3), which allows an 
effective date less than 30 days after publication ``as otherwise 
provided by the agency for good cause found and published with the 
rule.''
    CAIR SIP approvals relieve states and CAIR sources within states 
from being subject to provisions in the CAIR FIPs that otherwise would 
apply to them, allowing states to implement CAIR based on their SIP-
approved state rule. The relief from these obligations is sufficient 
reason to allow an expedited effective date of this rule under 5 U.S.C. 
553(d)(1). In addition, Maryland's relief from these obligations 
provides good cause to make this rule effective immediately upon 
publication, pursuant to 5 U.S.C. 553(d)(3). The purpose of the 30-day 
waiting period prescribed in 5 U.S.C. 553(d) is to give affected 
parties a reasonable time to adjust their behavior and prepare before 
the final rule takes effect. Where, as here, the final rule relieves 
obligations rather than imposes obligations, affected parties, such as 
the State of Maryland and CAIR sources within the State, do not need 
time to adjust and prepare before the rule takes effect.

V. 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 December 29, 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. This action to approve Maryland's CAIR rules 
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, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

    Dated: October 20, 2009.
William C. Early,
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 adding an 
entry for COMAR 26.11.28 after the existing entry for COMAR 26.11.27 to 
read as follows:


Sec.  52.1070  Identification of plan.

* * * * *
    (c) * * *

[[Page 56120]]



                                  EPA-Approved Regulations in the Maryland SIP
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                                                                                                  Additional
Code of Maryland administrative                             State                                explanation/
  regulations (COMAR) citation       Title/subject     effective date    EPA approval date    citation at 40 CFR
                                                                                                   52.1100
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                                                  * * * * * * *
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                                       26.11.28 Clean Air Interstate Rule
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26.11.28.01....................  Definitions.........         6/16/08  10/30/09 [Insert      ...................
                                                                        page number where
                                                                        the document
                                                                        begins].
26.11.28.02....................  Incorporation by             6/16/08  10/30/09 [Insert      ...................
                                  Reference.                            page number where
                                                                        the document
                                                                        begins].
26.11.28.03....................  Affected Units and           6/16/08  10/30/09 [Insert      ...................
                                  General                               page number where
                                  Requirements.                         the document
                                                                        begins].
26.11.28.04....................  Requirements for New         6/16/08  10/30/09 [Insert      ...................
                                  Affected Trading                      page number where
                                  Units and NOX Set                     the document
                                  Aside Pool.                           begins].
26.11.28.05....................  NOX Allowances for           6/16/08  10/30/09 [Insert      ...................
                                  Renewable Energy                      page number where
                                  Projects and                          the document
                                  Consumers of                          begins].
                                  Electric Power.
26.11.28.06....................  NOX Allowances To Be         6/16/08  10/30/09 [Insert      ...................
                                  Distributed to                        page number where
                                  Consumers of                          the document
                                  Electric Power.                       begins].
26.11.28.07....................  Distribution of              6/16/08  10/30/09 [Insert      ...................
                                  Unused NOX                            page number where
                                  Allowances in the                     the document
                                  Set Aside Pool.                       begins].
26.11.28.08....................  Allocation of NOX            6/16/08  10/30/09 [Insert      Annual and Ozone
                                  Allowances.                           page number where     Season Allocations
                                                                        the document          start in 2010
                                                                        begins].              instead of 2009.
 
                                                  * * * * * * *
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* * * * *


Sec.  52.1084  [Removed and Reserved]

0
3. Section 52.1084 is removed and reserved.


Sec.  52.1085  [Removed and Reserved]

0
4. Section 52.1085 is removed and reserved.
[FR Doc. E9-26090 Filed 10-29-09; 8:45 am]
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