[Federal Register Volume 67, Number 20 (Wednesday, January 30, 2002)]
[Rules and Regulations]
[Pages 4359-4363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2230]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[MD001-1000; FRL-7135-9]


Approval of Section 112(l) Authority for Hazardous Air 
Pollutants; State of Maryland; Department of the Environment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule and delegation of authority.

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SUMMARY: EPA is taking direct final action to approve Maryland 
Department of the Environment's (MDE's) request for delegation of 
authority to implement and enforce its hazardous air pollutant 
regulations for perchloroethylene drycleaning facilities, hard and 
decorative chromium electroplating and chromium anodizing tanks, 
ethylene oxide sterilization facilities, halogenated solvent cleaning, 
secondary lead smelting, hazardous waste combustors, and portland 
cement manufacturing

[[Page 4360]]

which have been adopted by reference from the Federal requirements set 
forth in the Code of Federal Regulations. This approval will 
automatically delegate future amendments to these regulations once MDE 
incorporates these amendments into its regulations. In addition, EPA is 
taking direct final action to approve of MDE's mechanism for receiving 
delegation of future hazardous air pollutant regulations. This 
mechanism entails MDE's incorporation by reference of the unchanged 
Federal standard into its hazardous air pollutant regulation and MDE's 
notification to EPA of such incorporation. EPA is not waiving its 
notification and reporting requirements under this approval; therefore, 
sources will need to send notifications and reports to both MDE and 
EPA. This action pertains only to affected sources, as defined by the 
Clean Air Act's (CAA's or the Act's) hazardous air pollutant program, 
which are not located at major sources, as defined by the Act's 
operating permit program. The MDE's request for delegation of authority 
to implement and enforce its hazardous air pollutant regulations at 
affected sources which are located at major sources, as defined by the 
Act's operating permit program, was initially approved on November 3, 
1999. EPA is taking this action in accordance with the CAA.

DATES: This direct final rule will be effective April 1, 2002 unless 
EPA receives adverse or critical comments by March 1, 2002. If adverse 
comment is received, EPA will publish a timely withdrawal of the rule 
in the Federal Register and inform the public that the rule will not 
take effect.

ADDRESSES: Written comments on this action should be sent concurrently 
to: Makeba A. Morris, Chief, Permits and Technical Assessment Branch, 
Mail Code 3AP11, Air Protection Division, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, PA 19103-2029, and 
Anne Marie DeBiase, Director, Air and Radiation Management 
Administration, Maryland Department of the Environment, 2500 Broening 
Highway, Baltimore, MD 21224. 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 and the 
Maryland Department of the Environment, 2500 Broening Highway, 
Baltimore, MD 21224.

FOR FURTHER INFORMATION CONTACT: Dianne J. McNally, U.S. Environmental 
Protection Agency, Region 3, 1650 Arch Street (3AP11), Philadelphia, PA 
19103-2029, [email protected] (telephone 215-814-3297). Please 
note that any formal comments must be submitted, in writing, as 
provided in the ADDRESSES section of this document.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 112(l) of the Act and 40 Code of Federal Regulations (CFR) 
part 63 subpart E authorize EPA to approve of State rules and programs 
to be implemented and enforced in place of certain CAA requirements, 
including the National Emission Standards for Hazardous Air Pollutants 
set forth at 40 CFR part 63. EPA promulgated the program approval 
regulations on November 26, 1993 (58 FR 62262) and subsequently amended 
these regulations on September 14, 2000 (65 FR 55810). An approvable 
State program must contain, among other criteria, the following 
elements:
    (a) A demonstration of the state's authority and resources to 
implement and enforce regulations that are at least as stringent as the 
NESHAP requirements;
    (b) A schedule demonstrating expeditious implementation of the 
regulation; and
    (c) A plan that assures expeditious compliance by all sources 
subject to the regulation.
    On November 3, 1999, MDE received delegation of authority to 
implement all emission standards promulgated in 40 CFR part 63, as they 
apply to major sources, as defined by 40 CFR part 70. On June 26, 2000, 
MDE submitted to EPA a request to receive delegation of authority to 
implement and enforce the hazardous air pollutant regulations for the 
remaining affected sources defined in 40 CFR part 63. The MDE 
supplemented this request with additional information on October 3, 
2001 and November 14, 2001. At the present time, this request includes 
the regulations for perchloroethylene drycleaning facilities, hard and 
decorative chromium electroplating and chromium anodizing tanks, 
ethylene oxide sterilization facilities, halogenated solvent cleaning, 
secondary lead smelting, hazardous waste combustors, and portland 
cement manufacturing which have been adopted by reference from the 
Federal requirements set forth in 40 CFR part 63, subparts M, N, O, T, 
X, EEE, and LLL respectively. The MDE also requested that EPA 
automatically delegate future amendments to these regulations and 
approve MDE's mechanism for receiving delegation of future hazardous 
air pollutant regulations which it adopts unchanged from the Federal 
requirements. This mechanism entails MDE's incorporation by reference 
of the unchanged Federal standard into its regulation for hazardous air 
pollutant sources at Title 26, Subtitle 11 of the Maryland Code of 
Regulations and MDE's notification to EPA of such incorporation.

II. EPA's Analysis of MDE's Submittal

    Based on MDE's program approval request and its pertinent laws and 
regulations, EPA has determined that such an approval is appropriate in 
that MDE has satisfied the criteria of 40 CFR 63.91. In accordance with 
40 CFR 63.91(d)(3)(i), MDE submitted a written finding by the State 
Attorney General which demonstrates that the State has the necessary 
legal authority to implement and enforce its regulations, including the 
enforcement authorities which meet 40 CFR 70.11, the authority to 
request information from regulated sources and the authority to inspect 
sources and records to determine compliance status. In accordance with 
40 CFR 63.91(d)(3)(ii), MDE submitted copies of its statutes, 
regulations and requirements that grant authority to MDE to implement 
and enforce the regulations. In accordance with 40 CFR 
63.91(d)(3)(iii)-(v), MDE submitted documentation of adequate resources 
and a schedule and plan to assure expeditious State implementation and 
compliance by all sources. Therefore, the MDE program has adequate and 
effective authorities, resources, and procedures in place for 
implementation and enforcement of sources subject to the requirements 
of 40 CFR part 63, subparts M, N, O, T, X, EEE,\1\ and LLL, as well as 
any future emission standards, should MDE seek delegation for these 
standards. The MDE adopts the emission standards promulgated in 40 CFR 
part 63 into regulation for hazardous air pollutant sources at Title 
26, Subtitle 11 of the Code of Maryland Regulations (COMAR). The MDE 
has the primary authority and responsibility to carry out all elements 
of these programs for all sources covered in Maryland, including on-
site inspections, record keeping reviews, and enforcement.
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    \1\ Delegation of the National Emission Standard for Hazardous 
Air Pollutants from Hazardous Waste Combustors (40 CFR part 63 
subpart EEE) could be affected by the July 24, 2001 ruling by the 
United States Court of Appeals for the District of Columbia Circuit 
which vacated the rule.
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III. Terms of Program Approval and Delegation of Authority

    In order for MDE to receive automatic delegation of future 
amendments to the perchloroethylene drycleaning facilities, hard and 
decorative chromium

[[Page 4361]]

electroplating and chromium anodizing tanks, ethylene oxide 
sterilization facilities, halogenated solvent cleaning, secondary lead 
smelting, hazardous waste combustors,\2\ and portland cement 
manufacturing regulations, as they apply to facilities that are not 
located at major sources, as defined by 40 CFR part 70, each amendment 
must be legally adopted by the State of Maryland. As stated earlier, 
these amendments are adopted into MDE's regulation for hazardous air 
pollutant sources at Title 26 COMAR, Subtitle 11. The delegation of 
amendments to these rules will be finalized on the effective date of 
the legal adoption. The MDE will notify EPA of its adoption of the 
Federal regulation amendments.
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    \2\ See Footnote 1.
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    EPA has also determined that MDE's mechanism for receiving 
delegation of future hazardous air pollutant regulations which it 
adopts unchanged from the Federal requirements, as they apply to 
facilities that are not located at major sources, as defined by 40 CFR 
part 70, can be approved. This mechanism requires MDE to adopt the 
Federal regulation into the State's regulation for hazardous air 
pollutant sources at Title 26 COMAR, Subtitle 11. The delegation will 
be finalized on the effective date of the legal adoption. The MDE will 
notify EPA of its adoption of the Federal regulation. The official 
notice of delegation of additional emission standards will be published 
in the Federal Register. As noted earlier, MDE's program to implement 
and enforce all emission standards promulgated under 40 CFR part 63, as 
they apply to major sources, as defined by 40 CFR part 70, was 
previously approved on November 3, 1999. The notification and reporting 
provisions in 40 CFR part 63 requiring the owners or operators of 
affected sources to make submissions to the Administrator shall be met 
by sending such submissions to MDE and EPA Region III.
    If at any time there is a conflict between a MDE regulation and a 
Federal regulation, the Federal regulation must be applied if it is 
more stringent than that of MDE. EPA is responsible for determining 
stringency between conflicting regulations. If MDE does not have the 
authority to enforce the more stringent Federal regulation, it shall 
notify EPA Region III in writing as soon as possible, so that this 
portion of the delegation may be revoked.
    If EPA determines that MDE's procedure for enforcing or 
implementing the 40 CFR part 63 requirements is inadequate, or is not 
being effectively carried out, this delegation may be revoked in whole 
or in part in accordance with the procedures set out in 40 CFR 
63.96(b).
    Certain provisions of 40 CFR part 63 allow only the Administrator 
of EPA to take further standard setting actions. In addition to the 
specific authorities retained by the Administrator in 40 CFR 63.90(d) 
and the ``Delegation of Authorities'' section for specific standards, 
EPA Region III is retaining the following authorities, in accordance 
with 40 CFR 63.91(g)(2)(ii):
    (1) Approval of alternative non-opacity emission standards, e.g., 
40 CFR 63.6(g) and applicable sections of relevant standards;
    (2) Approval of alternative opacity standards, e.g., 40 CFR 
63.9(h)(9) and applicable sections of relevant standards;
    (3) Approval of major alternatives to test methods, as defined in 
40 CFR 63.90(a), e.g., 40 CFR 63.7(e)(2)(ii) and (f) and applicable 
sections of relevant standards;
    (4) Approval of major alternatives to monitoring, as defined in 40 
CFR 63.90(a), e.g., 40 CFR 63.8(f) and applicable sections of relevant 
standards; and
    (5) Approval of major alternatives to recordkeeping and reporting, 
as defined in 40 CFR 63.90(a), e.g., 40 CFR 63.10(f) and applicable 
sections of relevant standards.
    The following provisions are included in this delegation, in 
accordance with 40 CFR 63.91(g)(1)(i), and can only be exercised on a 
case-by-case basis. When any of these authorities are exercised, MDE 
must notify EPA Region III in writing:
    (1) Applicability determinations for sources during the title V 
permitting process and as sought by an owner/operator of an affected 
source through a formal, written request, e.g., 40 CFR 63.1 and 
applicable sections of relevant standards \3\;
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    \3\ Applicability determinations are considered to be nationally 
significant when they:
    (i) Are usually complex or controversial;
    (ii) Have bearing on more than one state or are multi-Regional;
    (iii) Appear to create a conflict with previous policy or 
determinations;
    (iv) Are a legal issue which has not been previously considered; 
or
    (v) Raise new policy questions and shall be forwarded to EPA 
Region III prior to finalization.
    Detailed information on the applicability determination process 
may be found in EPA document 305-B-99-004 How to Review and Issue 
Clean Air Act Applicability Determinations and Alternative 
Monitoring, dated February 1999. The MDE may also refer to the 
Compendium of Applicability Determinations issued by the EPA and may 
contact EPA Region III for guidance.
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    (2) Responsibility for determining compliance with operation and 
maintenance requirements, e.g., 40 CFR 63.6(e) and applicable sections 
of relevant standards;
    (3) Responsibility for determining compliance with non-opacity 
standards, e.g., 40 CFR 63.6(f) and applicable sections of relevant 
standards;
    (4) Responsibility for determining compliance with opacity and 
visible emission standards, e.g., 40 CFR 63.6(h) and applicable 
sections of relevant standards;
    (5) Approval of site-specific test plans \4\, e.g., 40 CFR 
63.7(c)(2)(i) and (d) and applicable sections of relevant standards;
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    \4\ The MDE will notify EPA of these approvals on a quarterly 
basis by submitting a copy of the test plan approval letter. Any 
plans which propose major alternative test methods or major 
alternative monitoring methods shall be referred to EPA for 
approval.
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    (6) Approval of minor alternatives to test methods, as defined in 
40 CFR 63.90(a), e.g., 40 CFR 63.7(e)(2)(i) and applicable sections of 
relevant standards;
    (7) Approval of intermediate alternatives to test methods, as 
defined in 40 CFR 63.90(a), e.g., 40 CFR 63.7(e)(2)(ii) and (f) and 
applicable sections of relevant standards;
    (8) Approval of shorter sampling times/volumes when necessitated by 
process variables and other factors, e.g., 40 CFR 63.7(e)(2)(iii) and 
applicable sections of relevant standards;
    (9) Waiver of performance testing, e.g., 40 CFR 63.7 (e)(2)(iv), 
(h)(2), and (h)(3) and applicable sections of relevant standards;
    (10) Approval of site-specific performance evaluation (monitoring) 
plans \5\, e.g., 40 CFR 63.8(c)(1) and (e)(1) and applicable sections 
of relevant standards;
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    \5\ The MDE will notify EPA of these approvals on a quarterly 
basis by submitting a copy of the performance evaluation plan 
approval letter. Any plans which propose major alternative test 
methods or major alternative monitoring methods shall be referred to 
EPA for approval.
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    (11) Approval of minor alternatives to monitoring methods, as 
defined in 40 CFR 63.90(a), e.g., 40 CFR 63.8(f) and applicable 
sections of relevant standards;
    (12) Approval of intermediate alternatives to monitoring methods, 
as defined in 40 CFR 63.90(a), e.g., 40 CFR 63.8(f) and applicable 
sections of relevant standards;
    (13) Approval of adjustments to time periods for submitting 
reports, e.g., 40 CFR 63.9 and 63.10 and applicable sections of 
relevant standards; and
    (14) Approval of minor alternatives to recordkeeping and reporting, 
as defined in 40 CFR 63.90(a), e.g., 40 CFR 63.10(f) and applicable 
sections of relevant standards.

[[Page 4362]]

    As required, MDE and EPA Region III will provide the necessary 
written, verbal and/or electronic notification to ensure that each 
agency is fully informed regarding the interpretation of applicable 
regulations in 40 CFR part 63. In instances where there is a conflict 
between a MDE interpretation and a Federal interpretation of applicable 
regulations in 40 CFR part 63, the Federal interpretation must be 
applied if it is more stringent than that of MDE.
    Written, verbal and/or electronic notification will also be used to 
ensure that each agency is informed of the compliance status of 
affected sources in Maryland. The MDE will comply with all of the 
requirements of 40 CFR 63.91(g)(1)(ii). Quarterly reports will be 
submitted to EPA by MDE to identify sources determined to be applicable 
during that quarter.
    Although MDE has primary authority and responsibility to implement 
and enforce the hazardous air pollutant general provisions and 
hazardous air pollutant emission standards for perchloroethylene 
drycleaning facilities, hard and decorative chromium electroplating and 
chromium anodizing tanks, ethylene oxide sterilization facilities, 
halogenated solvent cleaning, secondary lead smelting, hazardous waste 
combustors,\6\ and portland cement manufacturing, nothing shall 
preclude, limit, or interfere with the authority of EPA to exercise its 
enforcement, investigatory, and information gathering authorities 
concerning this part of the Act.
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    \6\ See Footnote 1.
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IV. Final Action

    EPA is approving MDE's request for delegation of authority to 
implement and enforce its hazardous air pollutant regulations for 
perchloroethylene drycleaning facilities, hard and decorative chromium 
electroplating and chromium anodizing tanks, ethylene oxide 
sterilization facilities, halogenated solvent cleaning secondary lead 
smelting, hazardous waste combustors,\7\ and portland cement 
manufacturing which have been adopted by reference from 40 CFR part 63, 
subparts M, N, O, T, X, EEE, and LLL, respectively. This approval will 
automatically delegate future amendments to these regulations. In 
addition, EPA is approving of MDE's mechanism for receiving delegation 
of future hazardous air pollutant regulations which it adopts unchanged 
from the Federal requirements. This mechanism entails legal adoption by 
the State of Maryland of the amendments or rules into the State's 
regulation for hazardous air pollutant sources at Title 26 COMAR, 
Subtitle 11 and notification to EPA of such adoption. This action 
pertains only to affected sources, as defined by 40 CFR part 63, which 
are not located at major sources, as defined by 40 CFR part 70. The 
delegation of authority shall be administered in accordance with the 
terms outlined in section IV., above. This delegation of authority is 
codified in 40 CFR 63.99. In addition, MDE's delegation of authority to 
implement and enforce 40 CFR part 63 emission standards at major 
sources, as defined by 40 CFR part 70, approved by EPA Region III on 
November 3, 1999, is codified in 40 CFR 63.99.
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    \7\ See Footnote 1.
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    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial rule and anticipates no adverse 
comment because MDE's request for delegation of the hazardous air 
pollutant regulations pertaining to perchloroethylene drycleaning 
facilities, hard and decorative chromium electroplating and chromium 
anodizing tanks, ethylene oxide sterilization facilities, halogenated 
solvent cleaning, secondary lead smelting, hazardous waste 
combustors,\8\ and portland cement manufacturing and its request for 
automatic delegation of future amendments to these rules and future 
standards, when specifically identified, does not alter the stringency 
of these regulations and is in accordance with all program approval 
regulations. 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 of MDE's request for delegation if adverse 
comments are filed. This rule will be effective on April 1, 2002 
without further notice unless EPA receives adverse comment by March 1, 
2002. 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.
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    \8\ See Footnote 1.
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V. 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. 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 substantially 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 CAA. 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 
requests for rule approval under CAA section 112, EPA's role is to 
approve state choices, provided that they meet the criteria of the CAA. 
In this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS),

[[Page 4363]]

EPA has no authority to disapprove requests for rule approval under CAA 
section 112 for failure to use VCS. It would thus be inconsistent with 
applicable law for EPA, when it reviews a request for rule approval 
under CAA section 112, to use VCS in place of a request for rule 
approval under CAA section 112 that otherwise satisfies the provisions 
of the CAA. 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by April 1, 2002. 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, pertaining to the approval of MDE's delegation of 
authority for the hazardous air pollutant emission standards for 
perchloroethylene dry cleaning facilities, hard and decorative chromium 
electroplating and chromium anodizing tanks, ethylene oxide 
sterilizers, halogenated solvent cleaning, secondary lead smelting, 
hazardous waste combustors, and portland cement manufacturing (CAA 
section 112), may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects 40 CFR part 63

    Administrative practice and procedure, Air pollution control , 
Hazardous substances, Intergovernmental relations.

    Dated: January 22, 2002.
Judith M. Katz,
Director, Air Protection Division, Region III.

    40 CFR part 63 is amended as follows:

PART 63--[AMENDED]

    1. The authority citation for part 63 continues to read as follows:

    Authority: 42 U.S.C. 7401, et. seq.

Subpart E--Approval of State Programs and Delegation of Federal 
Authorities

    2. Section 63.99 is amended by adding paragraph (a)(20) to read as 
follows:


Sec. 63.99  Delegated Federal authorities.

    (a) * * *
    (20) Maryland.
    (i) Maryland is delegated the authority to implement and enforce 
all existing and future unchanged 40 CFR part 63 standards at major 
sources, as defined in 40 CFR part 70, in accordance with the 
delegation agreement between EPA Region III and the Maryland Department 
of the Environment, dated November 3, 1999, and any mutually acceptable 
amendments to that agreement.
    (ii) Maryland is delegated the authority to implement and enforce 
all existing 40 CFR part 63 standards and all future unchanged 40 CFR 
part 63 standards, if delegation is sought by the Maryland Department 
of the Environment and approved by EPA Region III, at affected sources 
which are not located at major sources, as defined in 40 CFR part 70, 
in accordance with the final rule, dated January 30, 2002, effective 
April 1, 2002, and any mutually acceptable amendments to the terms 
described in the direct final rule.

[FR Doc. 02-2230 Filed 1-29-02; 8:45 am]
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