E9-26090. Approval and Promulgation of Air Quality Implementation Plans; Maryland; Clean Air Interstate Rule

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving State Implementation Plan (SIP) revisions submitted by the State of Maryland, with the exception of its 2009 nitrogen oxides (NO_X) ozone season and NO_X annual allocations, its 2009 set-aside allocations and the Compliance Supplement Pool (CSP) allocations. The revisions establish budget trading programs for nitrogen oxides (NO_X) annual, NO_X ozone season, and sulfur dioxides (SO₂) annual emissions to address the requirements of EPA's Clean Air Interstate Rule (CAIR). Maryland will meet its CAIR requirements by participating in the EPA-administered regional cap-and-trade program for NO_X annual, NO_X ozone season, and SO₂ annual emissions. EPA is determining that the SIP revisions fully implement the CAIR requirements for Maryland. Although the DC Circuit found CAIR to be flawed, the rule was remanded without vacatur and thus remains in place. Thus, EPA is continuing to take action on CAIR SIPs as appropriate. CAIR, as promulgated, requires States to reduce emissions of SO₂ and NO_X that significantly contribute to, or interfere with maintenance of, the national ambient air quality standards (NAAQS) for fine particulates and/or ozone in any downwind state. CAIR establishes budgets for SO₂ and NO_X for States that contribute significantly to nonattainment in downwind States and requires the significantly contributing States to submit SIP revisions that implement these budgets. States have the flexibility to choose which control measures to adopt to achieve the budgets, including participation in EPA-administered cap-and-trade programs addressing SO₂, NO_X annual, and NO_X ozone season emissions. In the SIP revisions that EPA is approving, Maryland will meet CAIR requirements by participating in these cap-and-trade programs. EPA is approving the SIP revisions, with the exceptions noted, as fully implementing the CAIR requirements for Maryland. Consequently, this action will also cause the CAIR Federal Implementation Plans (CAIR FIPs) concerning SO₂, NO_X annual, and NO_X ozone season emissions by Maryland sources to be automatically withdrawn.

DATES:

Effective Date: The final rule is effective on October 30, 2009.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2009-0034. All documents in the docket are listed in the http://www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (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 through http://www.regulations.gov or in hard copy 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. Copies of the State submittal are available at the Maryland Department of the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland, 21230.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Action Did EPA Propose?

II. Summary of Maryland SIP Revision

III. What Is the Final Action?

IV. What Is the Effective Date?

V. Statutory and Executive Order Reviews

I. What Action Did EPA Propose?

On August 20, 2009 (74 FR 42038), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland. No comments were received. The NPR proposed approval of revisions to the Maryland SIP that addresses EPA's CAIR requirements. The formal SIP revisions were submitted by Maryland on October 24, 2007 and June 30, 2008.

II. Summary of Maryland SIP Revision

On October 24, 2007, the Maryland Department of the Environmental (MDE) submitted a full CAIR SIP revision to meet the requirements of CAIR, which was promulgated on May 12, 2005 (70 FR 25162), and subsequently revised on April 28, 2006, and December 13, 2006. The SIP revision consisted of new Maryland rule COMAR 26.11.28—Clean Air Interstate Rule (Maryland revision #07-14). On June 30, 2008, MDE submitted a SIP revision that amended Regulations .01 to .07 of COMAR 26.11.28 (Maryland revision #08-08). The regulations address all the requirements of the 40 CFR part 96 model rules set forth in the May 12, 2005 CAIR rulemaking.

On August 20, 2009 (74 FR 27731), EPA published an NPR to approve Maryland's CAIR SIP revisions, with the exception of its 2009 NO_X ozone season and NO_X annual allocations, its 2009 set-aside allocations and the CSP allocations. A detailed discussion of the CAIR requirements, the CAIR history (including the CAIR remand), Maryland's CAIR submittals, and EPA's rationale for approval of Maryland's CAIR SIP revisions may be found in the NPR and will not be repeated here.

EPA notes that, in North Carolina, 531 F.3d at 916-21, the Court determined, among other things, that the State SO₂ and NO_X budgets established in CAIR were arbitrary and capricious.^[1] However, as discussed above, the Court also decided to remand CAIR but to leave the rule in place in order to “temporarily preserve the environmental values covered by CAIR” pending EPA's development and promulgation of a replacement rule that remedies CAIR's flaws. North Carolina, 550 F.3d at 1178. EPA had indicated to the Court that development and promulgation of a replacement rule would take about two years. Reply in Support of Petition for Rehearing or Rehearing en Banc at 5 (filed Nov. 17, 2008 in North Carolina v. EPA, Case No. 05-1224, D.C. Cir.). The process at EPA of developing a proposal that will undergo notice and comment and result in a final replacement rule is ongoing. In the meantime, consistent with the Court's orders, EPA is implementing CAIR by approving State SIP revisions that are consistent with CAIR (such as the provisions setting State SO₂ and NO_X budgets for the CAIR trading programs) in order to “temporarily preserve” the environmental benefits achievable under the CAIR trading programs.

III. What Is the Final Action?

EPA is approving Maryland's CAIR SIP revisions submitted on October 24, 2007 and June 30, 2008, with the exception of its 2009 NO_X ozone season and NO_X annual allocations, its 2009 set-aside allocations and the CSP allocations. Under the SIP revisions, Maryland will participate in the EPA-administered cap-and-trade programs for NO_X annual, NO_X ozone season, and SO₂ annual emissions. The SIP revisions meet the applicable requirements in 40 CFR 51.123(o) and (aa), with regard to NO_X annual and NO_X ozone season emissions, and 40 CFR 51.124(o), with regard to SO₂ emissions. As a consequence of the SIP approval, the CAIR FIPs for Maryland are automatically withdrawn, in accordance with the automatic withdrawal provisions of EPA's November 2, 2007 rulemaking (72 FR 62338). The automatic withdrawal is reflected in the rule text that accompanies this notice and deletes and reserves the provisions in Part 52 that establish the CAIR FIPs for Maryland sources.

IV. What Is the Effective Date?

EPA finds that there is good cause for this approval to become effective upon publication because a delayed effective date is unnecessary due to the nature of the approval, which allows the State, as indicated in the NPR for this rulemaking, to use its own methodology for distribution of allowances from its set aside pool. The expedited effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rule actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction” and section 5 U.S.C. 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.”

CAIR SIP approvals relieve states and CAIR sources within states from being subject to provisions in the CAIR FIPs that otherwise would apply to them, allowing states to implement CAIR based on their SIP-approved state rule. The relief from these obligations is sufficient reason to allow an expedited effective date of this rule under 5 U.S.C. 553(d)(1). In addition, Maryland's relief from these obligations provides good cause to make this rule effective immediately upon publication, pursuant to 5 U.S.C. 553(d)(3). The purpose of the 30-day waiting period prescribed in 5 U.S.C. 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Where, as here, the final rule relieves obligations rather than imposes obligations, affected parties, such as the State of Maryland and CAIR sources within the State, do not need time to adjust and prepare before the rule takes effect.

V. 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 December 29, 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. This action to approve Maryland's CAIR rules 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
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides

Dated: October 20, 2009.

William C. Early,

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 adding an entry for COMAR 26.11.28 after the existing entry for COMAR 26.11.27 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
*         *         *         *         *         *         *
26.11.28 Clean Air Interstate Rule
26.11.28.01	Definitions	6/16/08	10/30/09 [Insert page number where the document begins]
26.11.28.02	Incorporation by Reference	6/16/08	10/30/09 [Insert page number where the document begins]
26.11.28.03	Affected Units and General Requirements	6/16/08	10/30/09 [Insert page number where the document begins]
26.11.28.04	Requirements for New Affected Trading Units and NOX Set Aside Pool	6/16/08	10/30/09 [Insert page number where the document begins]
26.11.28.05	NOX Allowances for Renewable Energy Projects and Consumers of Electric Power	6/16/08	10/30/09 [Insert page number where the document begins]
26.11.28.06	NOX Allowances To Be Distributed to Consumers of Electric Power	6/16/08	10/30/09 [Insert page number where the document begins]
26.11.28.07	Distribution of Unused NOX Allowances in the Set Aside Pool	6/16/08	10/30/09 [Insert page number where the document begins]
26.11.28.08	Allocation of NOX Allowances	6/16/08	10/30/09 [Insert page number where the document begins]	Annual and Ozone Season Allocations start in 2010 instead of 2009.
*         *         *         *         *         *         *

* * * * *

§ 52.1084

[Removed and Reserved]

3. Section 52.1084 is removed and reserved.

§ 52.1085

[Removed and Reserved]

4. Section 52.1085 is removed and reserved.

Footnotes

1.  The Court also determined that the CAIR trading programs were unlawful (id. at 906-8) and that the treatment of title IV allowances in CAIR was unlawful (id. at 921-23). For the same reasons that EPA is approving the provisions of Maryland's SIP revision that use the SO₂ and NO_X budgets set in CAIR, EPA is also approving, as discussed below, Maryland's SIP revision to the extent the SIP revision adopts the CAIR trading programs, including the provisions, addressing applicability, allowance allocations, and use of title IV allowances.