[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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