[Federal Register Volume 74, Number 209 (Friday, October 30, 2009)]
[Rules and Regulations]
[Pages 56117-56120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26090]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2009-0034; FRL-8975-2]
Approval and Promulgation of Air Quality Implementation Plans;
Maryland; Clean Air Interstate Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving State Implementation Plan (SIP) revisions
submitted by the State of Maryland, with the exception of its 2009
nitrogen oxides (NOX) ozone season and NOX annual
allocations, its 2009 set-aside allocations and the Compliance
Supplement Pool (CSP) allocations. The revisions establish budget
trading programs for nitrogen oxides (NOX) annual,
NOX 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 NOX annual, NOX 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
[[Page 56118]]
place. Thus, EPA is continuing to take action on CAIR SIPs as
appropriate. CAIR, as promulgated, requires States to reduce emissions
of SO2 and NOX 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 NOX
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, NOX annual, and NOX
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,
NOX annual, and NOX 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, (215) 814-2308, or by
e-mail at [email protected].
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
NOX ozone season and NOX 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
NOX 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 NOX budgets for the CAIR trading
programs) in order to ``temporarily preserve'' the environmental
benefits achievable under the CAIR trading programs.
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\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 NOX 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.
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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
NOX ozone season and NOX 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 NOX annual, NOX ozone season,
and SO2 annual emissions. The SIP revisions meet the
applicable requirements in 40 CFR 51.123(o) and (aa), with regard to
NOX annual and NOX 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
[[Page 56119]]
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.
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40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
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1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart V--Maryland
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2. In Sec. 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:
Sec. 52.1070 Identification of plan.
* * * * *
(c) * * *
[[Page 56120]]
EPA-Approved Regulations in the Maryland SIP
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Additional
Code of Maryland administrative State explanation/
regulations (COMAR) citation Title/subject effective date EPA approval date citation at 40 CFR
52.1100
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26.11.28 Clean Air Interstate Rule
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26.11.28.01.................... Definitions......... 6/16/08 10/30/09 [Insert ...................
page number where
the document
begins].
26.11.28.02.................... Incorporation by 6/16/08 10/30/09 [Insert ...................
Reference. page number where
the document
begins].
26.11.28.03.................... Affected Units and 6/16/08 10/30/09 [Insert ...................
General page number where
Requirements. the document
begins].
26.11.28.04.................... Requirements for New 6/16/08 10/30/09 [Insert ...................
Affected Trading page number where
Units and NOX Set the document
Aside Pool. begins].
26.11.28.05.................... NOX Allowances for 6/16/08 10/30/09 [Insert ...................
Renewable Energy page number where
Projects and the document
Consumers of begins].
Electric Power.
26.11.28.06.................... NOX Allowances To Be 6/16/08 10/30/09 [Insert ...................
Distributed to page number where
Consumers of the document
Electric Power. begins].
26.11.28.07.................... Distribution of 6/16/08 10/30/09 [Insert ...................
Unused NOX page number where
Allowances in the the document
Set Aside Pool. begins].
26.11.28.08.................... Allocation of NOX 6/16/08 10/30/09 [Insert Annual and Ozone
Allowances. page number where Season Allocations
the document start in 2010
begins]. instead of 2009.
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Sec. 52.1084 [Removed and Reserved]
0
3. Section 52.1084 is removed and reserved.
Sec. 52.1085 [Removed and Reserved]
0
4. Section 52.1085 is removed and reserved.
[FR Doc. E9-26090 Filed 10-29-09; 8:45 am]
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