[Federal Register: March 22, 2004 (Volume 69, Number 55)]
[Rules and Regulations]
[Page 13236-13239]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22mr04-12]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MD145/154-3104; FRL-7634-6]
Approval and Promulgation of Air Quality Implementation Plans;
Maryland; Nitrogen Oxides Allowance Allocations for 2006-2007, and
Revisions to Set-Aside Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to approve revisions to the
Maryland State Implementation Plan (SIP). The revisions consist of the
Nitrogen Oxides (NOX) allowance allocations for ozone
seasons 2006 and 2007, in accordance with Maryland's approved
NOX SIP Call program, and establishes a set aside pool
calculated as a percentage of the state's trading budget. EPA is
approving these revisions to Maryland's NOX Reduction and
Trading Program in accordance with the requirements of the Clean Air
Act.
DATES: This rule is effective on May 21, 2004, without further notice,
unless EPA receives adverse written comment by April 21, 2004. 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: Comments may be submitted either by mail or electronically.
Written comments should be mailed to Makeba Morris, Chief, Air Quality
Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency,
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
Electronic comments should be sent either to morris.makeba@epa.gov or
to http://www.regulations.gov, which is an alternative method for
submitting electronic comments to EPA. To submit comments, please
follow the detailed instructions described in Part III of the
SUPPLEMENTARY INFORMATION section. 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, 1301 Constitution Avenue, NW., Room B108,
Washington, DC 20460; and the Maryland Department of the Environment,
1800
[[Page 13237]]
Washington Boulevard, Suite 705, Baltimore, Maryland 21230.
FOR FURTHER INFORMATION CONTACT: Marilyn Powers, (215) 814-2308, or by
e-mail at powers.marilyn@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Maryland's NOX Reduction and Trading Program under COMAR
26.11.29 and 26.11.30 was approved by EPA as meeting the requirements
of the NOX SIP Call on January 10, 2001 (66 FR 1866). The
approved program contains NOX reduction requirements
beginning May 1, 2003, and allowance allocations for affected trading
sources for ozone seasons 2003 through 2005. Thereafter, Maryland's
approved rule requires that allocations be updated, three years in
advance, for every two year period, starting with 2006 and 2007. This
SIP revision consists of Maryland's allocation update for 2006 and
2007, and includes changes to the requirements pertaining to its set
aside pool.
II. Summary of SIP Revision
On April 24, 2003, July 7, 2003, and December 1, 2003, the Maryland
Department of the Environment (MDE) submitted formal revisions to its
SIP. The revisions consist of NOX allowance allocations for
the 2006 and 2007 ozone seasons, and revisions affecting Maryland's set
aside pool for new sources and clean air projects. The MDE's initial
submission of April 24, 2003, consists of revisions to COMAR
26.11.30.09, Allocation of Allowances. The MDE's letter of July 7,
2003, consists of an administrative change to correct an allocation for
one source. It amends Mirant Dickerson's Unit 3 allocation
from 410 to 404 tons of NOX. The revisions consisted of
allocations for the control period 2006 and 2007 for each of the
affected sources for which allocations were provided in the initial
control period (2003 through 2005). The allocations for electric
generating units (EGUS) were derived using each source's average actual
heat input from the 2000 and 2001 ozone seasons multiplied by an
emission rate of 0.15 pounds NOX/MMBTU, adjusted as a
percentage of the total budget, with the exception of one source which
received allocations based on its lower, permitted emission rate. The
allocations for non-electric generating units (non-EGUS) are unchanged
from the initial control period. For most sources the 2006 and 2007
allocations do not differ significantly from the initial 3-year
allocations.
The MDE's submission of December 1, 2003, consists of revisions to
COMAR 26.11.29.09, Requirements for New NOX Affected Trading
Sources and Set-Aside Pool. These revisions clarify that the set aside
pool continues beyond 2005, and establish the set aside pool calculated
as 5 percent of the state's trading budget for each ozone season
(obviating the need to submit a SIP revision for the set-aside every
time future allocations are made). Also, the revisions allow new
sources to secure allowances at the end of each ozone season, as is
allowed for existing sources. Together, these submissions establish
allocations that maintain Maryland's NOX SIP statewide
budget. They are approvable as satisfying the NOX SIP Call
requirement that Maryland update its allowance allocations for the 2006
and 2007 ozone seasons.
III. Final Action
EPA is approving the SIP revisions submitted by MDE on April 24,
2003, July 7, 2003, and December 1, 2003. The revisions consist of
NOX allowance allocations for the 2006 and 2007 ozone
seasons, and revisions affecting Maryland's set aside pool for new
sources and clean air projects.
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 21, 2004, without further
notice unless EPA receives adverse comment by April 21, 2004. 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. Please note that if EPA receives adverse comment on an
amendment, paragraph, or section of this rule and if that provision may
be severed from the remainder of the rule, EPA may adopt as final those
provisions of the rule that are not the subject of an adverse comment.
You may submit comments either electronically or by mail. To ensure
proper receipt by EPA, identify the appropriate rulemaking
identification number MD145/154-3104 in the subject line on the first
page of your comment. Please ensure that your comments are submitted
within the specified comment period. Comments received after the close
of the comment period will be marked ``late.'' EPA is not required to
consider these late comments.
1. Electronically. If you submit an electronic comment as
prescribed below, EPA recommends that you include your name, mailing
address, and an e-mail address or other contact information in the body
of your comment. Also include this contact information on the outside
of any disk or CD ROM you submit, and in any cover letter accompanying
the disk or CD ROM. This ensures that you can be identified as the
submitter of the comment and allows EPA to contact you in case EPA
cannot read your comment due to technical difficulties or needs further
information on the substance of your comment. EPA's policy is that EPA
will not edit your comment, and any identifying or contact information
provided in the body of a comment will be included as part of the
comment that is placed in the official public docket. 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.
i. E-mail. Comments may be sent by electronic mail (e-mail) to
morris.makeba@epa.gov, attention MD145/154-3104. EPA's e-mail system is
not an ``anonymous access'' system. If you send an e-mail comment
directly without going through Regulations.gov, EPA's e-mail system
automatically captures your e-mail address. E-mail addresses that are
automatically captured by EPA's e-mail system are included as part of
the comment that is placed in the official public docket.
ii. Regulations.gov. Your use of Regulation.gov is an alternative
method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov
, then select ``Environmental Protection Agency'' at
the top of the page and use the ``go'' button. The list of current EPA
actions available for comment will be listed. Please follow the online
instructions for submitting comments. The system is an ``anonymous
access'' system, which means EPA will not know your identity, e-mail
address, or other contact information unless you provide it in the body
of your comment.
iii. Disk or CD ROM. You may submit comments on a disk or CD ROM
that you mail to the mailing address identified in the ADDRESSES
section of this document. These electronic submissions will be accepted
in WordPerfect, Word or ASCII file format. Avoid the use of special
characters and any form of encryption.
2. By Mail. Written comments should be addressed to the EPA
Regional office
[[Page 13238]]
listed in the ADDRESSES section of this document.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing at the EPA Regional Office,
as EPA receives them and without change, unless the comment contains
copyrighted material, confidential business information (CBI), or other
information whose disclosure is restricted by statute. When EPA
identifies a comment containing copyrighted material, EPA will provide
a reference to that material in the version of the comment that is
placed in the official public rulemaking file. The entire printed
comment, including the copyrighted material, will be available at the
Regional Office for public inspection.
Submittal of CBI Comments
Do not submit information that you consider to be CBI
electronically to EPA. You may claim information that you submit to EPA
as CBI by marking any part or all of that information as CBI (if you
submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is CBI). Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2.
In addition to one complete version of the comment that includes
any information claimed as CBI, a copy of the comment that does not
contain the information claimed as CBI must be submitted for inclusion
in the official public regional rulemaking file. If you submit the copy
that does not contain CBI on disk or CD ROM, mark the outside of the
disk or CD ROM clearly that it does not contain CBI. Information not
marked as CBI will be included in the public file and available for
public inspection without prior notice. If you have any questions about
CBI or the procedures for claiming CBI, please consult the person
identified in the FOR FURTHER INFORMATION CONTACT section.
Considerations When Preparing Comments to EPA
You may find the following suggestions helpful for preparing your
comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that
support your views.
4. If you estimate potential burden or costs, explain how you
arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline
identified.
8. To ensure proper receipt by EPA, identify the appropriate
regional file/rulemaking identification number in the subject line on
the first page of your response. It would also be helpful if you
provided the name, date, and Federal Register citation related to your
comments.
IV. Statutory and Executive Order Reviews
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. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). 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). This rule also does not
have tribal implications because it will not have a substantial direct
effect on one or more Indian tribes, on the relationship between the
Federal government and Indian tribes, or on the distribution of power
and responsibilities between the Federal government and Indian tribes,
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
This action also does not have federalism implications because it does
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).
This action 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 ``Protection of Children
from Environmental Health Risks and Safety Risks'' (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. 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 May 21, 2004. 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
[[Page 13239]]
shall not postpone the effectiveness of such rule or action. This
action to approve both the Maryland NOX allowance
allocations for 2006 through 2007 and the revisions to the set aside
pool requirements, 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: March 2, 2004.
Donald S. Welsh,
Regional Administrator, Region III.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart V--Maryland
0
2. Section 52.1070 is amended by adding paragraph (c)(186) to read as
follows:
Sec. 52.1070 Identification of plan.
* * * * *
(c) * * *
(186) Revisions to the Maryland State Implementation Plan submitted
on April 24, 2003, July 7, 2003, and December 1, 2003 by the Maryland
Department of the Environment pertaining to the Policies and Procedures
Relating to Maryland's NOX Reduction and Trading Program,
and the Nitrogen Oxides Reduction and Trading Program.
(i) Incorporation by reference.
(A) Letter of April 24, 2003 from the Maryland Department of the
Environment transmitting additions, deletions, and revisions to COMAR
26.11.30 Nitrogen Oxides Reduction and Trading Program, effective April
28, 2003.
(1) Revisions to COMAR 26.11.30.09A.
(2) Deletion of existing COMAR 26.11.30.09B.
(3) Addition of new COMAR 26.11.30.09B, allocations for control
periods 2003 through 2007.
(B) Letter of July 7, 2003 from the Maryland Department of the
Environment transmitting an administrative correction to COMAR
26.11.30.09 amending Mirant Dickerson's Unit 3 allocation from
410 to 404 tons of NOX.
(C) Letter of December 1, 2003 from the Maryland Department of the
Environment transmitting additions, deletions, and revisions to COMAR
26.11.29 NOX Reduction and Trading Program, effective
November 24, 2003.
(1) Revisions to COMAR 26.11.29.09 (title), .09A (introductory
sentence), and .09A(1).
(2) Addition of COMAR 26.11.29.09A(2) and .09A(3).
(3) Revisions to COMAR 26.11.29.09B (introductory sentence),
.09B(1) and .09B(2), establishing the set aside pool at 5 percent of
the total trading budget.
(4) Deletion of COMAR 26.11.29.09E and 09F.
(5) COMAR 26.11.29.09G is renumbered as 26.11.29.09E.
(ii) Additional Material.
(A) Remainder of the State submittals pertaining to the revisions
listed in paragraph (c)(186)(i) of this section.
[FR Doc. 04-6305 Filed 3-19-04; 8:45 am]
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