[Federal Register Volume 64, Number 119 (Tuesday, June 22, 1999)]
[Rules and Regulations]
[Pages 33197-33200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15713]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MD 027-3038; FRL-6363-2]
Approval and Promulgation of Air Quality Implementation Plans;
Maryland; Reasonably Available Control Technology Requirements for
Major Sources of Nitrogen Oxides
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is granting conditional limited approval of a State
[[Page 33198]]
Implementation Plan (SIP) revision submitted by the State of Maryland.
This revision establishes and requires all major sources of nitrogen
oxides (NOX) to implement reasonably available control
technology (RACT). This revision was submitted to comply with the
NOX requirements of the Clean Air Act (the Act). Also,
Maryland's regulations are being revised by adding and amending
definitions. The intended effect of this action is to grant conditional
limited approval of Maryland's NOX RACT regulation and to
approve the new and revised definitions submitted by the State of
Maryland.
EFFECTIVE DATE: This final rule is effective on July 22, 1999.
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 Maryland Department
of the Environment, 2500 Broening Highway, Baltimore, Maryland, 21224.
FOR FURTHER INFORMATION CONTACT: Carolyn M. Donahue, (215) 814-2095, or
by e-mail at donahue.carolyn@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On February 18, 1999 (64 FR 8034), EPA published a notice of
proposed rulemaking (NPR) for the State of Maryland. The NPR proposed
conditional limited approval of Maryland's NOX RACT rule,
Code of Maryland Regulations (COMAR) 26.11.09.08. The formal SIP
revision was submitted by the Maryland Department of the Environment on
June 8, 1993 and amended on July 11, 1995.
Also submitted with the NOX RACT rule were amendments to
COMAR 26.11.09.01 and 26.11.01.01, revising the definition of ``fuel
burning equipment'' and adding definitions for the terms ``annual
combustion analysis,'' ``space heater,'' and ``system'' used in COMAR
26.11.09.08. EPA is fully approving these amendments. Other specific
requirements of Maryland's NOX RACT rule and the rationale
for EPA's proposed action are explained in the NPR and will not be
restated here.
II. Comments Received on EPA's Notice of Proposed Rulemaking
EPA received three letters in response to the February 18, 1999
NPR, all making the same comment. The following discussion summarizes
and responds to the comment received.
Comment 1: The commenters oppose submittal of COMAR 26.11.01.11 for
inclusion in the Maryland SIP to satisfy the reporting and
recordkeeping requirements of Maryland's NOX RACT rule. The
commenters stated that inclusion of this regulation would cause
consequences beyond that of using continuous emissions monitoring (CEM)
as a NOX measurement tool. The comment also stated that
COMAR 26.11.01.11 should be considered for inclusion in the SIP on its
own merits, and the effort to include it ``should initiate at the State
level.''
Response 1: In the State's NOX RACT rule, Maryland
established that the monitoring requirements for NOX
facilities would be those set forth in COMAR 26.11.01.10 and .11. COMAR
26.11.01.10 has been approved into the Maryland SIP; however, COMAR
26.11.01.11 has never been submitted to EPA for approval. Maryland's
NOX RACT rule will be federally enforceable only if the
regulations cited by this rule are themselves federally enforceable. As
pointed out in the second condition in the NPR, EPA left it to the
State to decide whether or not to initiate efforts to include COMAR
26.11.01.11 in the SIP. The second condition in the NPR stated that
Maryland may submit COMAR 26.11.01.11 or revise the rule to explain the
reporting requirements. Maryland is currently in the process of
revising its NOX RACT rule to address the NOX
monitoring requirements and satisfy this condition.
Terms of Conditional Approval
EPA cannot grant full approval of Maryland's NOX RACT
rule because not every major NOX source is covered by the
presumptive limits in Sec. C or RACT provisions in Secs. H and J.
Maryland has the option to submit individual RACT determinations as SIP
revisions, thus the RACT rule will not be approvable until all of its
components are approvable. Therefore, EPA is conditionally approving
Maryland's NOX RACT regulations, based on the State's
commitment to submit for approval into the SIP, the case-by-case RACT
proposals for all sources subject to RACT requirements currently known
to MDE. Maryland submitted this commitment in a letter to EPA, dated
October 29, 1998.
To fulfill the condition of this approval the State of Maryland
must, within 12 months of the effective date of this rulemaking:
1. Certify that it has submitted case-by-case RACT SIPs for all
sources subject to the RACT requirements currently known to the
Department, or demonstrate that the emissions from any remaining
subject sources represent a de minimis level of emissions;
2. Either submit COMAR 26.11.01.11 to EPA for approval, or revise
Sec. F to clearly explain the reporting and record keeping requirements
in COMAR 26.11.09.08;
3. Change COMAR 26.11.09.08D to unambiguously require all emissions
trading plans and proposals be submitted as individual SIP revisions,
or meet all the requirements of a discretionary EIP.
Once EPA has determined that the State has met these conditions,
EPA shall remove the conditional nature of its approval and the
Maryland NOX regulation SIP revision will, at that time,
retain limited approval status. Should the State fail to meet the
conditions specified above, the final conditional limited approval of
the Maryland NOX RACT regulation SIP revision shall convert
to a disapproval.
Terms of Limited Approval
While EPA does not believe that the Maryland generic NOX
RACT regulation satisfies the Act's RACT requirements as discussed
previously in this notice, EPA is also granting limited approval of the
Maryland generic RACT regulation on the basis that it strengthens the
Maryland SIP. After Maryland has fulfilled the conditions of this rule
and once EPA has approved all of the case-by-case RACT proposals as SIP
revisions, the limited approval will convert to full approval.
III. Final Action
EPA is granting conditional limited approval to Maryland's
NOX RACT rule, COMAR 26.11.09.08, as a revision to the
Maryland SIP, and is approving amendments to COMAR 26.11.01.01.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from review under E.O. 12866, entitled ``Regulatory
Planning and Review.''
B. Executive Order 12875
Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a state, local, or
tribal government,
[[Page 33199]]
unless the Federal government provides the funds necessary to pay the
direct compliance costs incurred by those governments. If EPA complies
by consulting, E.O. requires EPA to provide to the Office of Management
and Budget a description of the extent of EPA's prior consultation with
representatives of affected state, local, and tribal governments, the
nature of their concerns, copies of written communications from the
governments, and a statement supporting the need to issue the
regulation. In addition, E.O. 12875 requires EPA to develop an
effective process permitting elected officials and other
representatives of state, local, and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.'' Today's rule does not
create a mandate on state, local or tribal governments. The rule does
not impose any enforceable duties on these entities. Accordingly, the
requirements of section 1(a) of E.O. 12875 do not apply to this rule.
C. Executive Order 13045
E.O. 13045, entitled ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that the EPA determines (1) is ``economically
significant,'' as defined under E.O. 12866, and (2) the environmental
health or safety risk addressed by the rule has a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This final rule is not subject to E.O. 13045 because it is not an
economically significant regulatory action as defined by E.O. 12866,
and it does not address an environmental health or safety risk that
would have a disproportionate effect on children.
D. Executive Order 13084
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly affects or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments. If EPA complies by
consulting, Executive Order 13084 requires EPA to provide to the Office
of Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected and
other representatives of Indian tribal governments ``to provide
meaningful and timely input in the development of regulatory policies
on matters that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the communities
of Indian tribal governments. This action does not involve or impose
any requirements that affect Indian Tribes. Accordingly, the
requirements of section 3(b) of E.O. 13084 do not apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This final rule will not have a significant impact on a
substantial number of small entities because conditional and limited
approvals of SIP submittals under sections 110 and 301, and subchapter
I, part D of the Act do not create any new requirements but simply
approve requirements that the State is already imposing. Therefore,
because the Federal SIP approval does not impose any new requirements,
EPA certifies that it does not have a significant impact on any small
entities affected. Moreover, due to the nature of the Federal-State
relationship under the Clean Air Act, preparation of a flexibility
analysis would constitute Federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co. versus
U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
If the conditional approval is converted to a disapproval under
section 110(k), based on the State's failure to meet the commitment, it
will not affect any existing state requirements applicable to small
entities. Federal disapproval of the state submittal does not affect
its state-enforceability. Moreover, EPA's disapproval of the submittal
does not impose a new Federal requirement. Therefore, EPA certifies
that this disapproval action does not have a significant impact on a
substantial number of small entities because it does not remove
existing requirements nor does it substitute a new federal requirement.
F. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
annual costs to State, local, or tribal governments in the aggregate;
or to private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated annual costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
pre-existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
G. 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).
H. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action, pertaining to Maryland's
[[Page 33200]]
generic NOX RACT regulation, must be filed in the United
States Court of Appeals for the appropriate circuit by August 23, 1999.
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 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: June 2, 1999.
Thomas Maslany,
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)(143) to read
as follows:
Sec. 52.1070 Identification of plan.
* * * * *
(c) * * *
(143) Revisions to the Code of Maryland Air Regulations (COMAR)
26.11.01.01 and 26.11.09.01, and limited approval of revisions to COMAR
26.11.09.08, submitted on June 8, 1993 and July 11, 1995 by the
Maryland Department of the Environment:
(i) Incorporation by reference.
(A) Letter of June 8, 1993 from the Maryland Department of the
Environment transmitting COMAR 26.11.09.08, Control of NOX
Emissions from Major Stationary Sources and amendments to COMAR
26.11.09.01, Definitions.
(B) COMAR 26.11.09.08, Control of NOX Emissions from
Major Stationary Sources, effective on May 10, 1993, replacing the
existing COMAR 26.11.09.08.
(C) Amendment to COMAR 26.11.09.01, Definitions, effective on May
10, 1993.
(D) Letter of July 11, 1995 from the Maryland Department of the
Environment transmitting amendments to COMAR 26.11.09.08, Control of
NOX Emissions from Major Stationary Sources, amendments to
COMAR 26.11.01.01, Definitions and COMAR 26.11.09.01, Definitions.
(E) Amendments to COMAR 26.11.09.08, Control of NOX
Emissions from Major Stationary Sources, effective on June 20, 1994 and
May 8, 1995.
(F) Amendment to COMAR 26.11.01.01, Definitions, effective on June
20, 1994.
(G) Amendments to COMAR 26.11.09.01, Definitions, effective on June
20, 1994 and on May 8, 1995.
(ii) Additional material.
(A) Remainder of June 8, 1993 and July 11, 1995 State submittals.
(B) Letter of October 29, 1998 from the Maryland Department of the
Environment agreeing to meet certain conditions by no later than 12
months after July 22, 1999.
3. Section 52.1072 is amended by adding paragraph (e) to read as
follows:
Sec. 52.1072 Conditional approval.
* * * * *
(e) Revisions to the Code of Maryland Air Regulations (COMAR), rule
26.11.09.08, pertaining to NOX RACT submitted on June 8,
1993 and amended on July 11, 1995 by the Maryland Department of the
Environment, is conditionally approved based on certain contingencies.
Maryland must meet the following conditions by no later than 12 months
after July 22, 1999. These conditions are that Maryland must:
(1) Certify that it has submitted case-by-case RACT SIPs for all
sources subject to the RACT requirements currently known to the
Department, or demonstrate that the emissions from any remaining
subject sources represent a de minimis level of emissions;
(2) Either submit COMAR 26.11.01.11 to EPA for approval, or revise
COMAR 26.11.09.08F to clearly explain the reporting and record keeping
requirements in COMAR 26.11.09.08;
(3) Change COMAR 26.11.09.08D to unambiguously require all
emissions trading plans and proposals be submitted as individual SIP
revisions, or meet all the requirements of a discretionary EIP.
[FR Doc. 99-15713 Filed 6-21-99; 8:45 am]
BILLING CODE 6560-50-P
