[Federal Register Volume 77, Number 119 (Wednesday, June 20, 2012)]
[Notices]
[Pages 37039-37041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-15018]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9690-2]


Delegation of Authority to the State of Maryland To Implement and 
Enforce Additional or Revised National Emission Standards for Hazardous 
Air Pollutants and New Source Performance Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of delegation of authority.

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SUMMARY: On April 16, 2012, EPA sent the State of Maryland (Maryland) a 
letter acknowledging that Maryland's delegation of authority to 
implement and enforce National Emissions Standards for Hazardous Air 
Pollutants (NESHAP) and New Source Performance Standards (NSPS) had 
been updated, as provided for under previously approved delegation 
mechanisms. To inform regulated facilities and the public of Maryland's 
updated delegation of authority to implement and enforce NESHAP and 
NSPS, EPA is making available a copy of EPA's letter to Maryland 
through this notice.

DATES: On April 16, 2012, EPA sent Maryland a letter acknowledging that 
Maryland's delegation of authority to implement and enforce NESHAP and 
NSPS had been updated.

ADDRESSES: Copies of documents pertaining 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 19103-2029. Copies of 
Maryland's submittal are also available at the Maryland Department of 
the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, 
Maryland 21230. Copies of Maryland's notice to EPA that Maryland has 
updated its incorporation by reference of Federal NESHAP and NSPS, and 
of EPA's response, may also be found posted on EPA Region III's Web 
site at: http://www.epa.gov/reg3artd/airregulations/delegate/mddelegation.htm.

FOR FURTHER INFORMATION CONTACT: Ray Chalmers, (215) 814-2061, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: On March 7, 2012, Maryland notified EPA that 
Maryland has updated its incorporation by reference of Federal NESHAP 
under 40 CFR part 63 and NSPS under 40 CFR part 60 to include all 
current and future standards. On April 16, 2012, EPA sent

[[Page 37040]]

Maryland a letter acknowledging that Maryland now has the authority to 
implement and enforce the NESHAP and NSPS as specified by Maryland in 
its notice to EPA, as provided for under previously approved automatic 
delegation mechanisms. All notifications, applications, reports and 
other correspondence required pursuant to the delegated NESHAP and NSPS 
must be submitted to both the US EPA Region III and to the Maryland 
Department of Environment. A copy of EPA's letter to Maryland follows:

``Mr. George S. Aburn, Jr.
Director, Air and Radiation Management Administration
Maryland Department of the Environment
1800 Washington Boulevard
Baltimore, Maryland 21230

Dear Mr. Aburn:

    Thank you for your letter of March 7, 2012 informing the United 
States Environmental Protection Agency (EPA) that the State of Maryland 
(Maryland) has acted to obtain updates of its existing delegations of 
authority to implement and enforce federal National Emissions Standards 
for Hazardous Air Pollutants (NESHAP) and New Source Performance 
Standards (NSPS).
    As you know, EPA's previous delegations to Maryland of the 
authority to implement and enforce various NESHAP found at 40 CFR parts 
61 and 63 and of various NSPS found at 40 CFR part 60 provide that 
Maryland may obtain automatic delegation of authority to implement and 
enforce updated or additional NESHAP and NSPS.\1\ For Maryland to 
obtain automatic delegation of additional standards, the primary 
requirement is that Maryland must have included the updated or 
additional standards by reference into Maryland's regulations. In some 
cases Maryland must also have provided notice to EPA and/or committed 
to enforcing the standards in accordance with the provisions of the 
applicable previous EPA delegation(s) of authority to Maryland.
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    \1\ EPA has posted copies of these delegation actions at: http://www.epa.gov/reg3artd/airregulations/delegate/mddelegation.htm.
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    In your letter you notify EPA that Maryland has ``acted to obtain 
updates to its delegations of authority to implement and enforce NESHAP 
and NSPS to include all current and future:
     NESHAP under 40 CFR Part 63; and
     NSPS under 40 CFR Part 60.''
    You note that the Code of Maryland Regulations (COMAR) specifies 
Maryland's requirements pertaining to control of NESHAP and NSPS 
sources. You state that ``[i]n accordance with COMAR 26.11.15.02, 
NESHAP sources in Maryland may not be constructed, modified, or 
operated in any way which will result in violation of any provisions of 
40 CFR Part 63.'' You also note that ``[i]n accordance with COMAR 
26.11.06.12, NSPS sources in Maryland may not be constructed, modified, 
or operated in any way which will result in violation of any provisions 
of 40 CFR Part 60.''
    You explain that Maryland has updated the COMAR to specify that 
Maryland has adopted all current and future NESHAP found at 40 CFR part 
63 and NSPS found at 40 CFR part 60 by reference. You further explain 
that Maryland accomplished this by updating its definitions of a NESHAP 
source, found at COMAR 26.11.01.01B(21), and its definition of a NSPS 
source, found at COMAR 26.11.01.01B(23). You state that Maryland 
intends to implement all delegated current and future NESHAP found at 
40 CFR part 63 and NSPS found at 40 CFR part 60 in conformance with the 
terms of the applicable previous EPA delegations of authority to 
Maryland.
    You provided EPA with copies of notices Maryland published in the 
Maryland Register proposing and finalizing the revised COMAR 
definitions of a NESHAP source and of a NSPS source.
    EPA notes that the final action notice which Maryland provided, 
dated February 24, 2012, confirms Maryland's revision of Title 26, 
Department of the Environment, Subtitle 11, Air Quality to adopt the 
revised definitions. The notice states that:
    ``On February 9, 2012, the Secretary of the Environment adopted 
amendments to:
    (1) Regulation .01 under COMAR 26.11.01--General Administrative 
Provisions; and
    (2) Regulation .12 under COMAR 26.11.06--General Emission 
Standards, Prohibitions, and Restrictions.
    This action, which was proposed for adoption in 38:25 Md. R. 1647-
1648 (December 2, 2011) has been adopted as proposed.
    Effective Date: March 5, 2012.''
    EPA further notes that the proposed action notice which Maryland 
provided, dated December 2, 2011, specifies Maryland's proposed updates 
to the NESHAP source and NSPS source definitions.
    Maryland states in the proposed action notice that it is proposing 
to revise Regulation .01 under COMAR 26.11.01--General Administrative 
Provisions, as follows:
    ``.01 Definitions
    A. (text unchanged)
    B. Terms Defined
    (1)-(20-1) (text unchanged)
    (21) -- `National Emission Standards for Hazardous Air Pollutants 
source (NESHAP source)' means any:
    (a) Source of asbestos, beryllium, mercury, vinyl chloride, 
benzene, or inorganic arsenic which is subject to the provisions of 40 
CFR Part 61 (excluding Subparts B, H, I, K, Q, R, T, and W), as 
amended; or
    (b) [One of the sources listed in Sec.  D of this regulation] \2\ 
Source which is subject to the provisions of 40 CFR Part 63, as 
amended.
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    \2\ Maryland uses brackets to indicate text to be deleted.
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    (22) Reserved
    (23) `New Source Performance Standard source (NSPS source)' [(see 
Sec.  C of this regulation)] means any source which is subject to 40 
CFR part 60, as amended.
    (24)-(53) (text unchanged)
    [C.]-[D.] (proposed for repeal)''
    The notice also proposes a change to a reference in COMAR to the 
NSPS definition. That reference is found at Regulation .12 under COMAR 
26.11.06--General Emission Standards, Prohibitions, and Restrictions. 
Maryland proposed this change in the citation because Maryland had also 
proposed to change the COMAR identification of the NSPS source 
definition to identify it as definition number 23.
    In response to your submittal, EPA acknowledges that Maryland now 
has the delegated authority to implement and enforce the current and 
future NESHAP as found in 40 CFR part 63, and the current and future 
NSPS found in 40 CFR part 60, except for those standards which EPA 
explicitly excluded from its delegations to Maryland in EPA's initial 
delegation actions, as discussed below. EPA also acknowledges that 
Maryland has the delegated authority to implement and enforce any 
future amendments to delegated standards. EPA would also like to note 
that Maryland continues to be delegated the authority to implement and 
enforce the NESHAP standards at 40 CFR part 61, in accordance with 
EPA's previous delegation action related to these standards, except for 
those subparts in 40 CFR part 61 which Maryland has not adopted by 
reference as Maryland indicates by its exclusion of them in its 
definition of NESHAP source.
    Please note that when EPA initially delegated to Maryland the 
authority to implement and enforce various NESHAP and NSPS, EPA 
specified various standards or provisions that it

[[Page 37041]]

was specifically excluding from its designation, including any 
standards under 40 CFR part 63 that control radionuclides, or any 
provisions pertaining to an accidental release prevention program. 
These exclusions remain in effect. EPA also specified various 
requirements, limitations and restrictions. All of these remain in 
effect.
    Please also note that on December 19, 2008, in Sierra Club v. 
EPA,\3\ the United States Court of Appeals for the District of Columbia 
Circuit vacated certain provisions of the General Provisions of 40 CFR 
Part 63 relating to exemptions for startup, shutdown, and malfunction 
(SSM). On October 16, 2009, the Court issued a mandate vacating these 
SSM exemption provisions, which are found at 40 CFR Sec.  63.6(f)(1) 
and (h)(1).
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    \3\ Sierra Club v. EPA, 551 F.3rd 1019 (D.C. Cir. 2008).
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    Accordingly, EPA no longer allows sources the SSM exemption as 
provided for in the vacated provisions at 40 CFR Sec.  63.6(f)(1) and 
(h)(1), even though EPA has not yet formally removed these SSM 
exemption provisions from the General Provisions of 40 CFR Part 63. 
Because Maryland incorporated 40 CFR Part 63 by reference, Maryland 
should also no longer allow sources to use the former SSM exemption 
from the General Provisions of 40 CFR Part 63 due to the Court's ruling 
in Sierra Club v. EPA.
    EPA appreciates Maryland's continuing NESHAP and NSPS enforcement 
efforts, and also Maryland's decision to take automatic delegation of 
all current and future NESHAP and NSPS by adopting them by reference.

Sincerely,
Diana Esher,
Director Air Protection Division''

    This notice acknowledges the update of Maryland's delegation of 
authority to implement and enforce NESHAP and NSPS.

    Dated: June 3, 2012.
Diana Esher,
Director, Air Protection Division, Region III.
[FR Doc. 2012-15018 Filed 6-19-12; 8:45 am]
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