01-3381. Approval and Promulgation of Air Quality Implementation Plans; Maryland; New Source Review Regulations

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Maryland. This SIP revision amends the requirements for major new sources and major modifications to existing sources of volatile organic compounds (VOCs), and nitrogen oxides (NO_X) to meet certain new source review (NSR) permitting requirements if they are proposing to locate or are located within the State of Maryland. These NSR requirements apply not only in those portions of Maryland designated as ozone nonattainment areas, but throughout the State of Maryland as the entire state is located within the Ozone Transport Region (OTR). EPA is fully approving Maryland's NSR program in the Maryland portion of the Metropolitan Washington, DC Ozone Nonattainment Area and throughout the State of Maryland with the exception of the Baltimore Ozone Nonattainment Area and the Maryland portion (Cecil County) of the Philadelphia-Wilmington-Trenton Ozone Nonattainment Area. In the Baltimore Ozone Nonattainment Area and in Cecil County, EPA is granting limited approval of Maryland's NSR regulations because they are more stringent than the currently approved NSR program and serve, therefore, to strengthen the SIP. The intended effect of this action is to grant approval of Maryland's NSR regulations.

EFFECTIVE DATE:

This final rule is effective on March 14, 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:

Perry R. Pandya, Mailcode 3AP11, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103, [phone] or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

The State of Maryland submitted a formal SIP revision to EPA on June 8, 1993. That revision consisted of its NSR regulations. On September 25, 2000, the State of Maryland submitted a revised version of its NSR regulations as a SIP revision. On October 19, 2000 (65 FR 62675), EPA proposed limited approval of the State of Maryland's NSR regulations submitted on June 8, 1993, as amended on September 25, 2000. In its October 19, 2000 (65 FR 62675) notice of proposed rulemaking, EPA also withdrew its earlier May 25, 1994 (59 FR 26994) proposal to grant limited approval/limited disapproval to Maryland's NSR regulations.

The comment period for EPA's October 19, 2000 proposal was originally scheduled to close on November 9, 2000. On November 9, 2000 (65 FR 67319), EPA published a notice announcing that the comment period had been extended to November 20, 2000. A detailed description of Maryland's NSR regulations and EPA's rationale for approving them were provided in EPA's October 19, 2000 proposed rulemaking notice (65 FR 62675) and shall not be restated here. EPA received public comments from EarthJustice, an environmental group. A summary of the comments and EPA's responses are found in Section II, below.

II. Public Comments Received and EPA's Responses

Comment: The commenter asserts that EPA does not have the authority under the Clean Air Act to grant limited approval to Maryland's NSR program. The commenter contends unless EPA finds that Maryland's NSR program meets all applicable requirements of the Clean Air Act, it must disapprove it, either partially or fully.

Response: EPA disagrees with this comment. Although section 110(k) of the Clean Air Act may not expressly provide authority for limited approvals, section 301(a) of the Act does provide “gap-filling” authority in conjunction with the section 110(k)(3) approval authority to provide for limited approvals where EPA has determined that a revised State provision strengthens the federal enforceability of a given State SIP. EPA has determined that Maryland's revised nonattainment NSR rules strengthen the federal enforceability of the current Maryland SIP because under the revised regulations NSR is now applicable statewide in Maryland, rather than just in seven counties and Baltimore City. Under the revised regulations, NSR provisions now apply to major sources of NO_X emissions, rather that just major sources of VOC emissions. Under the Clean Air Act as amended in 1990 (the Act), the definition of a major source is determined by its size, location, the classification of that area and whether it is located in the ozone transport region (OTR), which is established by the Act. The entire State of Maryland is included in the OTR. Therefore, NSR is applicable statewide in Maryland. The Act defines a major source of NO_X as one that emits or has the potential to emit 25 or more tons of NO_X per year (TPY) in any ozone nonattainment area classified as severe (such as Cecil County, the Maryland portion of the Philadelphia-Wilmington-Trenton Ozone Nonattainment Area and the Baltimore Ozone Nonattainment Area), as one that emits 50 or more TPY located in any ozone nonattainment area classified as serious (such as the Maryland portion of the Metropolitan Washington, D.C. Ozone Nonattainment Area). For any area in the OTR classified as attainment or marginal nonattainment (that is, the rest of the State), sections 182 and 184 of the Act define a major stationary source of NO_X as one that emits or has the potential to emit 100 or more TPY. Similarly, the Act defines a major source of VOC as one that emits or has the potential to emit 25 or more tons of VOC per year (TPY) in any ozone nonattainment area classified as severe (such as Cecil County, the Maryland portion of the Philadelphia-Wilmington-Trenton Ozone Nonattainment Area and the Metropolitan Baltimore Ozone Nonattainment Area), as 50 or more TPY located in any ozone nonattainment area classified as serious (such as the Maryland Portion of the Metropolitan Washington, D.C. Ozone Nonattainment Area). For any area in the OTR classified as attainment or marginal nonattainment (that is, the rest of the State), sections182 and 184 of the Act define a major stationary source of VOC as one that emits or has the potential to emit 50 or more TPY. Maryland's revised NSR regulation defines a major source of VOC and a major source of NO_X to which NSR applies in compliance with the Act. The currently approved SIP's NSR regulations not only pertain solely to major VOC sources located in designated ozone nonattainment areas, but define a major source of VOC as one with the potential to emit 100 TPY. EPA has, therefore, also determined that Maryland's revised nonattainment NSR rules strengthen the federal enforceability of the current Maryland SIP because under the revised regulations, major sources are defined at the Act's lower definitions for applicability of NSR. Prior to 1990, offsets for NSR permitting in ozone nonattainment area had to be secured at a 1:1 ratio of actual emissions reduced for allowable emissions increased. The Act increases the ratio of required offsets for purposes of satisfying NSR requirements according to an ozone nonattainment area's classification. In severe areas (such as the Baltimore Ozone Nonattainment Area and Cecil County) the offset ratio is 1.3:1, in serious areas (such as the Metropolitan Washington, D.C. Ozone Nonattainment Area) the ratio is 1.2:1 and in areas of the OTR classified as marginal or attainment (such as the remainder of the State of Maryland), the ratio is 1.15:1. EPA has, therefore, also determined that Maryland's revised nonattainment NSR rules strengthen the federal enforceability of the current Maryland SIP because under the revised regulations, the ratio of required offsets has been increased as mandated by the Act whereas under the current SIP, the required offset ratio is 1:1. For all the reasons provided above, EPA concludes that it has proper authority under the Act to grant a limited approval action to Maryland's revised NSR regulations.

Nonetheless, upon further consideration of the comment received and further evaluation of Maryland's NSR program, EPA has determined that it is appropriate to grant full approval of the State's NSR program as it applies in the Maryland portion of the Metropolitan Washington, D.C. Ozone Nonattainment Area and in all other portions of Maryland with the exception of the Baltimore and the Maryland portion (Cecil County) of the Philadelphia-Wilmington-Trenton Ozone Nonattainment Areas. EPA's sole reason for proposing limited approval rather than full approval of Maryland's regulations was that they do not contain certain restrictions on the use of emission reductions from the shutdown and curtailment of existing sources or units as NSR offsets. These restrictions apply in nonattainment areas without an approved attainment demonstration [see 40 CFR part 51.165(a)(ii)(C)]. On December 15, 2000, EPA signed a final rule approving the attainment demonstration for the Metropolitan Washington, D.C. Ozone Nonattainment Area, and those restrictions do not apply in that area. With the exception of the Baltimore Ozone Nonattainment Area, and the Maryland portion of the Philadelphia-Wilmington-Trenton Ozone Nonattainment Area (where EPA on December 16, 1999 proposed approval of the attainment demonstration, 64 FR 70397 and 70412, respectively), the State of Maryland has satisfied all applicable requirements for attainment demonstrations.

Therefore, EPA is fully approving Maryland's NSR program in the Maryland portion of the Metropolitan Washington, D.C. Ozone Nonattainment Area and throughout the State of Maryland with the exception of the Baltimore and the Maryland portion of the Philadelphia-Wilmington-Trenton Ozone Nonattainment Areas (Cecil County). In the Baltimore Ozone Nonattainment Area, and the Maryland portion of the Philadelphia-Wilmington-Trenton Ozone Nonattainment Area (Cecil County), EPA is granting limited approval of Maryland's NSR regulations because they are more stringent than the current NSR program and serve, therefore, to strengthen the SIP.

III. Final Action

EPA is approving Maryland's NSR regulations originally submitted as a SIP revision on June 8, 1993 and subsequently amended on September 25, 2000. EPA is granting full approval of these regulations as they apply in the Metropolitan Washington, D.C. Ozone Nonattainment Area and throughout the remainder of the State of Maryland with the exception of the Baltimore and the Maryland portion (Cecil County) of the Philadelphia-Wilmington-Trenton Ozone Nonattainment Areas. EPA is granting limited approval of Maryland's NSR regulations as they apply in Cecil County and in the Baltimore Ozone Nonattainment Area. As a result of EPA's approval action, EPA is incorporating the following State provisions into the Maryland SIP: COMAR 26.11.17, as amended through October 2, 2000; and revisions to COMAR 26.11.01.01, 26.11.02, and 26.11.06.06, all as amended effective April 26, 1993. Maryland's submittals strengthen the SIP and meet the NSR requirements of the Clean Air Act. Accordingly, this action revises 40 CFR Section 52.1070 by adding paragraph (c)(148) to reflect EPA's approval action.

IV. 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 (Public Law 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 April 13, 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 approving Maryland's NSR regulations 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
• Hydrocarbons
• Incorporation by reference
• Ozone
• Reporting and recordkeeping requirements

Dated: December 15, 2000.

Thomas C. Voltaggio,

Acting 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 paragraph (c)(148) to read as follows:

§ 52.1070

Identification of plan.

* * * * *

(c) * * *

(148) Revisions to the Maryland State Implementation Plan submitted on June 8, 1993 and September 25, 2000 by the Maryland Department of the Environment.

(i) Incorporation by Reference

(A) Letter dated June 8, 1993 from the Maryland Department of the Environment transmitting revisions to COMAR 26.11.01, 26.11.02, and 26.11.06, as well as a new COMAR 26.11.17.

(B) The following provisions of COMAR 26.11.01.01 (General Administrative Provisions—Definitions), 26.11.02 (Permits, Approvals, and Registration), 26.11.06 (General Emission Standards, Prohibitions, and Restrictions), and 26.11.17 (Requirements for Major New Sources and Modifications), effective April 26, 1993:

(1) Revised COMAR 26.11.01.01J (definition of “Modification”) [currently cited as COMAR 26.11.01.01B(20)].

(2) New COMAR 26.11.01.01M-1 definition of “New Source Review Source” (NSR Source) [currently cited as COMAR 26.11.01.01B(24)], replacing COMAR 26.11.01.01L (“New Source Impacting on a Non-Attainment Area—NSINA”).

(3) Revised COMAR 26.11.02.03A(1), .03B, .09A (introductory paragraph), 09A(5), .10C (introductory paragraph), .11A (introductory paragraph), .11A(3).

(4) Revised COMAR 26.11.06.06E(1).

(5) New COMAR 26.11.17.01A; .01B(1)(a), (b); .01B(2) through .01B(14); .01B(15)(a)[introductory paragraph only], (c), (d), (e)[except iii], (f); .01B(16) through (18); .02B through .02F; .03A; .03B(1), .03B(2), .03B(3)(a) through .03B(3)(d)[except introductory paragraph]; .03B(4); .03B(5); .03C; .03D; .05A; .05B(1); .05B(3). This rule replaces COMAR 26.11.06.11.

(C) Letter dated September 25, 2000 from the Maryland Department of the Environment transmitting revisions to COMAR 26.11.17.

(D) The following provisions of COMAR 26.11.17 (Requirements for Major New Sources and Modifications), effective October 2, 2000: .01B(1)(c); .01B(15)(a)(i), .01B(15)(a)(ii), .01B(15)(b), .01B(15)(e)(iii); .02A(1), .02A(2); .03B(3), .03B(5), .03B(6)[formerly .03B(5)], .04A(1), .04A(2), .04B, .04C(1), .04C(2); .05B(2).