[Federal Register Volume 70, Number 145 (Friday, July 29, 2005)]
[Proposed Rules]
[Pages 43818-43820]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15051]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[R03-OAR-2005-MD-0005; FRL-7946-4]
Approval and Promulgation of Air Quality Implementation Plans;
Maryland; Repeal of NOX Budget Program COMAR 26.11.27 and
26.11.28
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve a revision to the Maryland State
Implementation Plan (SIP). The revision repeals Maryland's Nitrogen
Oxides (NOX) Budget Program under COMAR 26.11.27 and
26.11.28. This program implemented Maryland's portion of the Ozone
Transport Commission (OTC) regional cap and trade program to
significantly reduce transport of ozone in 12 northeastern states and
the District of Columbia (DC), an area known as the Ozone Transport
Region (OTR). Maryland's OTC NOX Budget Program has been
superseded by its more stringent, federally-approved NOX
Reduction and Trading Program which satisfies the NOX SIP
Call. This action is in accordance with the Clean Air Act.
DATES: Written comments must be received on or before August 29, 2005.
ADDRESSES: Submit your comments, identified by Regional Material in
EDocket (RME) ID Number R03-OAR-2005-MD-0005 by one of the following
methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
on-line instructions for submitting comments.
Agency Web site: http://www.docket.epa.gov/rmepub/ RME, RPA's
electronic public docket and comment system, is EPA's preferred method
for receiving comments. Follow the on-line instructions for submitting
comments.
E-mail: [email protected]
Mail: R03-OAR-2005-MD-0005, David Campbell, Chief, Air Quality
Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency,
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to RME ID No. R03-OAR-2005-MD-
0005. EPA's policy is that all comments received will be included in
the public docket without change, and may be made available online at
http://www.docket.epa.gov/rmepub/, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through RME, regulations.gov
or e-mail. The EPA RME and the Federal regulations.gov Web sites are an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the
[[Page 43819]]
body of your comment. If you send an e-mail comment directly to EPA
without going through RME or regulations.gov, your e-mail address will
be automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. 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. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the electronic docket are listed in the
RME index at http://www.docket.epa.gov/rmepub/. Although listed in the
index, some information is not publicly available, i.e., 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 in RME
or in hard copy 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, (215) 814-2308, or by
e-mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
Maryland's OTC NOX Budget Program (OTC Program)
implemented the State's portion of a regional cap and trade program to
reduce NOX emissions generated within the OTR. The regional
program consisted of an agreement by member states, called a Memorandum
of Understanding (MOU), which recognized that further reductions of
NOX beyond reasonably available control technology (RACT,
termed Phase I) would be required for power plants and other large
sources in order for the states in the OTR to meet the national ambient
air quality standards (NAAQS). The OTC Program (termed Phase II) was
implemented by Maryland and approved as part of the State's SIP on
December 15, 2000 (65 FR 78416).
While the OTC Program was being implemented by certain states in
the OTC, including Maryland, EPA finalized its rulemaking under the so-
called ``NOX SIP Call.'' A discussion of the relationship
between OTC Program and the NOX SIP Call may be found in
EPA's Notice of Proposed Rulemaking (NPR) for the NOX SIP
Call (62 FR 60345, November 7, 1997). As discussed in the NPR, EPA
recognized that the OTC Program was necessary for OTC states to make
progress towards attainment of the one-hour ozone standard, and that
coordination between the programs could eventually be accomplished
because the timing and amount of emission reductions required by the
OTC's Phase III were very close to those of NOX SIP Call,
although the reductions in the NOX SIP Call were expected to
be more stringent. EPA published its final rulemaking for the
NOX SIP Call on October 27, 1998 (63 FR 57356), which
required 22 eastern states, including Maryland, as well as the District
of Columbia, to submit SIP revisions to prohibit specified amounts of
NOX. As in the OTC program, the NOX SIP Call
established statewide NOX budgets for each state to meet
during the ozone season (May 1 through September 30). The SIP call rule
also made express certain provisions for states currently operating the
OTC trading programs to transition elements of their OTC programs to
the NOX SIP Call trading program. See 63 FR at 57356.
Maryland adopted the model NOX budget trading rule of the
NOX published with the NOX SIP as COMAR
26.11.29--NOX Reduction and Trading Program and COMAR
26.11.30--Policies and Procedures Relating to Maryland's NOX
Reduction and Trading Program. On January 10, 2001 (66 FR 1866), these
regulations were approved as part of the Maryland SIP as fully meeting
the NOX SIP Call. Trading under Maryland's OTC Program ended
in 2002. Pursuant to the NOX SIP Call, in May 2003, Maryland
began implementing the federally-approved NOX SIP Call
trading program, which contains more stringent, i.e., lower, caps on
NOX emissions than the OTC program it replaced.
II. Summary of SIP Revision
On December 1, 2003, the State of Maryland submitted a formal
revision to its SIP. The SIP revision repeals Maryland's OTC
NOX Budget Program under COMAR 26.11.27 (Post-RACT
Requirements for NOX Sources) and COMAR 26.11.28 (Policies
and Procedures Relating to Maryland's NOX Budget Program).
In Maryland, the NOX SIP Call applies to electric
generating units larger than 25 megawatts, as compared to an
applicability of 15 megawatts under the OTC Program. There are,
therefore, some small units between 15 and 25 megawatts that were
subject to the OTC program, but not the NOX SIP Call trading
program. All of these units are peaking units which typically operate
only a few days per year and are subject to RACT-based emissions
limits. The OTC program state budget was 22,881 tons of NOX,
which was established using an EGU NOX emission rate of 0.20
pounds NOX per million Btu (lbs/mmBtu). In comparison, the
NOX SIP Call state budget is 15,603 tons of NOX,
based on a NOX emission rate of 0.15 lbs/mmBtu for EGUs and
0.17 lbs/mmBtu for large non-EGUS. Maryland's requirements under the
NOX SIP Call are more stringent than the OTC program, and as
noted above, supplants the requirement for Phase III under the OTC MOU
\1\. Further, in accordance with CAA 110(1), repeal of the OTC program,
which has been, as EPA intended, replaced with the more stringently
capped NOX SIP Call trading program, will not interfere with
any applicable requirement concerning attainment or reasonable further
progress or any other applicable requirement. The Metropolitan
Washington, DC area attainment plan, the Philadelphia-Wilmington-
Trenton area attainment plan, and the Baltimore attainment plan for
one-hour ozone relied on the OTC NOX Budget program to help
meet reductions required in 2002, and relies on the NOX SIP
Call Program to help meet reductions required in 2005 and beyond.
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\1\ As should be expected, the more stringent cap under the
NOX SIP Call trading programs results, for the most part,
in fewer allowances being allocated to each individual trading
source under the NOX SIP Call trading program than under
the OTC program. Compare COMAR 26.11.28.11 (allowance allocation
under the OTC program) to COMAR 26.11.30.09 (allowances allocated
under the NOX SIP Call trading program).
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III. Proposed Action
Maryland's OTC Program has been superseded by its NOX
Reduction and Trading Program, approved to satisfy the NOX
SIP Call. Its budget under the NOX Reduction and Trading
Program is lower than its budget under the OTC program, and repeal of
the OTC program does not impact any attainment plan. EPA is proposing
to approve Maryland's SIP revision to repeal its OTC NOX
Budget Program under COMAR 26.11.27 and 26.11.28. EPA is soliciting
public comments on the issues discussed in this document. These
comments will be considered before taking final action.
[[Page 43820]]
IV. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed 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 proposes to approve state law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by state law. Accordingly, the Administrator certifies that
this proposed 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 proposes to approve 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 (Pub. L. 104-4). This proposed rule also does 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), nor will it 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), because it
merely proposes to approve a state rule implementing a Federal
requirement, and does not alter the relationship or the distribution of
power and responsibilities established in the Clean Air Act.
This proposed rule also is not subject to Executive Order 13045 (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. As required by section 3
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing
this proposed rule, EPA has taken the necessary steps to eliminate
drafting errors and ambiguity, minimize potential litigation, and
provide a clear legal standard for affected conduct. EPA has complied
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining
the takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings'' issued under the executive order.
This proposed rule to repeal Maryland's NOX Budget
Trading Program under COMAR 29.11.27 and 29.11.28 does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 22, 2005.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. 05-15051 Filed 7-28-05; 8:45 am]
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