E9-6654. 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.

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: [e-mail].

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.

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

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.

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).

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.

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. In § 52.1070, the table in paragraph (c) is amended by revising the entry for COMAR 26.11.19.02G to read as follows:

§ 52.1070

Identification of plan.

* * * * *

(c) * * *

EPA-Approved Regulations in the Maryland SIP

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

* * * * *

§ 52.1072

[Amended]

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

§ 52.1073

[Amended]

4. In § 52.1073, the table in paragraph (e) is removed and reserved.