01-568. Approval and Promulgation of Air Quality Implementation Plans; Maryland; Nitrogen Oxides Reduction and Trading Program

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Maryland on April 27, 2000. This revision was submitted to satisfy EPA's regulation entitled, “Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone,” otherwise known as the “NO_X SIP Call.” This revision establishes and requires a nitrogen oxides (NO_X) allowance trading program for large electric generating and industrial units, and reductions for cement kilns and stationary industrial combustion engines, beginning in 2003. The intended effect of this action has two purposes. EPA is approving the Maryland's NO_X Reduction and Trading Program because it meets the requirements of the NO_X SIP Call that will significantly reduce ozone transport in the eastern United States. In addition, EPA is approving Maryland's NO_X Reduction and Trading Program because it supports the one-hour attainment demonstration plans for the Baltimore, Metropolitan Washington, D.C. and Philadelphia-Wilmington-Trenton ozone nonattainment areas.

EFFECTIVE DATE:

This final rule is effective on February 9, 2001.

ADDRESSES:

Copies of the documents relevant 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; the Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 20460; and the Maryland Department of the Environment, 2500 Broening Highway, Baltimore, Maryland, 21224.

FOR FURTHER INFORMATION CONTACT:

Cristina Fernandez, [phone] or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

On April 27, 2000, the Maryland Department of the Environment (MDE) submitted a revision to its SIP to meet the requirements of the NO_X SIP Call. The revision consists of the adoption of two new chapters COMAR 26.111.29— NO_X Reduction and Trading Program and COMAR 26.11.30—Policies and Procedure Relating to Maryland's NO_X Reduction and Trading Program.

On October 19, 2000 (65 FR 62671), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland proposing to approve the April 27, 2000 SIP revision. That NPR provided for a public comment period ending on November 9, 2000. On November 9, 2000 (65 FR 67319), EPA published a notice extending the comment period to November 20, 2000. A detailed description of this SIP revision and EPA's rationale for approving it was provided in the October 19, 2000 NPR and will not be restated here. One letter of comment was submitted on EPA's proposal. A summary of the comments expressed in that letter and EPA's response is provided in section II, below.

II. Public Comments and EPA Response

Comment: A letter of comment was submitted expressing concerns over the impact an expansion of the Baltimore/Washington International (BWI) Airport expansion would have on Maryland's ability to limit both emissions of NO_X and volatile organic compounds (VOCs) sufficiently to meet the National Ambient Air Quality Standard for ozone. The commenter states his overarching concern that planned “growth” in the Baltimore and Washington, DC areas from such projects as the expansion of BWI airport and the Ann Arundel Mills Mall is occurring at a rate such that compliance with the Maryland's program to satisfy the NO_X SIP call could be jeopardized. The commenter expresses concerns that although Maryland is “required” to abide by a regional cap and trade program that is intended to significantly reduce NO_X emissions generated within the Ozone Transport Region, that effort will fail unless the impact of the BWI airport is properly documented to include the cumulative impact of the airport's NO_X emissions, due to cars, buses, transport vehicles, maintenance facilities, rental cars, and aircraft.

Response: The commenter is correct that VOC and NO_X emissions resulting from growth in the Baltimore and Washington DC areas from projects such as BWI airport and the Ann Arundel Mills Mall must be considered by the State of Maryland in meeting its requirements under the Clean Air Act for attainment and maintenance of the NAAQS for ozone. Increases in both NO_X and VOC emissions from such projects must be demonstrated to conform to plans and provisions of the Maryland SIP established to accommodate such “growth.” Approval of Maryland's regulations and requirements to satisfy the NO_X SIP call in no way relieves the State from the applicable requirements and obligations under the Clean Air Act's transportation and general conformity provisions. In determining the appropriate control levels, the NO_X SIP Call rulemaking assumed certain amounts of growth from all source categories. The comment seems to imply that EPA was not cognizant of growth, any such implication is incorrect. Moreover, the requirements of the NO_X SIP Call and Maryland's SIP will be satisfied if the sources subject to controls implement those controls, and if the emissions cap applicable to electric generating units (EGUs) is adhered to. Under the federal NO_X SIP Call, states were allowed the flexibility to decide what sources of emissions to control to achieve the required reductions in NO_X. EPA did provide information that those reductions could be achieved in the most cost effective manner by controlling large stationary sources. EPA finds that Maryland's NO_X Reduction and Trading Program meets the requirements of the NO_X SIP Call. However, neither the federal NO_X SIP Call rule nor Maryland's Program to satisfy that rule alters either of the mandated conformity programs' requirements. Moreover, while the NO_X SIP Call rule specifically establishes requirements to reduce NO_X emissions, the transportation and general conformity provisions of the Clean Act require that both NO_X and VOC emissions increases be accounted for and conform with a state's plan(s) to attain and maintain the NAAQS for ozone. For these reasons, EPA believes that approval of Maryland's regulations and requirements to satisfy the NO_X SIP call strengthens the SIP and does not alter or make less stringent the State's obligation to meet the conformity requirements of the Clean Air Act and its SIP.

II. Final Action

EPA is approving the Maryland's SIP revision consisting of its NO_X Reduction and Trading Program, which was submitted on April 27, 2000. EPA finds that Maryland's submittal is fully approvable because it meets the requirements of the NO_X SIP Call. In addition, EPA is approving Maryland's NO_X Reduction and Trading Program because it supports the one-hour attainment demonstration plans for the Baltimore, Metropolitan Washington, DC and Philadelphia-Wilmington-Trenton ozone nonattainment areas.

III. Administrative Requirements

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. 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 (Publ. L. 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will 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), because it merely approves a state rule implementing a federal standard, 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 (62 FR 19885, April 23, 1997), because it is not economically significant. 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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order. 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 March 12, 2001. 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 Maryland's NO_X Reduction and Trading Program 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
• Reporting and recordkeeping requirements

Dated: December 14, 2000.

Bradley M. Campbell,

Regional Administrator, Region III.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart V—Maryland

2. Section 52.1070 is amended by adding paragraphs (c)(154) to read as follows:

§ 52.1070

Identification of plan.

* * * * *

(c) * * *

(154) Revisions to the Maryland Regulations pertaining to the Nitrogen Oxides (NO_X) Reduction and Trading Program submitted on April 27, 2000 by the Maryland Department of the Environment:

(i) Incorporation by reference.

(A) Letter of April 27, 2000 from the Maryland Department of the Environment transmitting additions to the Maryland State Implementation Plan pertaining to the NO_X Reduction and Trading Program.

(B) Revisions to COMAR 26.11.29, NO_X Reduction and Trading Program and COMAR 26.11.30, Policies and Procedures Relating to Maryland's NO_X Reduction and Trading Program, effective May 1, 2000.

(1) Addition of COMAR 26.11.29.01 through COMAR 26.11.29.15.

(2) Addition of COMAR 26.11.30.01 through COMAR 26.11.30.09.

(ii) Additional material. Remainder of April 27, 2000 submittal pertaining to the NO_X Reduction and Trading Program.