Approval and Promulgation of Air Quality Implementation Plans; Maryland; Repeal of NOX, 43818-43820 [05-15051]

Download as PDF 43818 Federal Register / Vol. 70, No. 145 / Friday, July 29, 2005 / Proposed Rules Inc. located in Wicomico County, Maryland submitted on May 31, 2005. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. 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 standard, 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 VerDate jul<14>2003 17:15 Jul 28, 2005 Jkt 205001 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 pertaining to a Consent Order establishing VOC RACT for Perdue Farms, Inc. located in Wicomico County, Maryland, 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, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: July 22, 2005. Donald S. Welsh, Regional Administrator, Region III. [FR Doc. 05–15052 Filed 7–28–05; 8:45 am] BILLING CODE 6560–50–P 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 Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: SUMMARY: EPA is proposing to approve a revision to the Maryland State PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 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: campbell.dave@epa.gov 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 previouslylisted 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 E:\FR\FM\29JYP1.SGM 29JYP1 Federal Register / Vol. 70, No. 145 / Friday, July 29, 2005 / Proposed Rules 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 powers.marilyn@epa.gov. 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). VerDate jul<14>2003 17:15 Jul 28, 2005 Jkt 205001 While the OTC Program was being implemented by certain states in the OTC, including Maryland, EPA finalized its rulemaking under the socalled ‘‘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 federallyapproved 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 PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 43819 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. 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. 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). E:\FR\FM\29JYP1.SGM 29JYP1 43820 Federal Register / Vol. 70, No. 145 / Friday, July 29, 2005 / Proposed Rules 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 VerDate jul<14>2003 17:15 Jul 28, 2005 Jkt 205001 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] BILLING CODE 6560–50–M ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [R05–OAR–2005–IN–0004; FRL–7946–3] Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Indiana; Lake County Sulfur Dioxide Regulations, Redesignation and Maintenance Plan Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) revision for the control of sulfur dioxide (SO2) emissions in Lake County, PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 Indiana. The SIP revision submitted by the Indiana Department of Environmental Management (IDEM) on April 8, 2005, and supplemented on July 6, 2005, amends 326 Indiana Administrative Code (IAC) Article 7. Indiana’s revised SO2 rule consists of changes to 326 IAC 7–4 which sets forth facility-specific SO2 emission limitations and recordkeeping requirements for Lake County. The rule revision also reflects updates to company names, updates to emission limits currently in permits, deletion of facilities that are already covered by natural gas limits, or other corrections or updates. Due to changes in section numbers, references to citations in other parts of the rule have also been updated. EPA is also proposing to approve a request to redesignate the Lake County nonattainment area to attainment of the SO2 National Ambient Air Quality Standards (NAAQS), which was submitted for parallel processing by IDEM on June 21, 2005. In conjunction with these actions, EPA is also proposing to approve the maintenance plan for the Lake County nonattainment area to ensure that attainment of the NAAQS will be maintained. The SIP revision, redesignation request and maintenance plan are approvable because they satisfy the requirements of the Clean Air Act (Act). The rationale for the approval and other information are provided in this notice. DATES: Comments must be received on or before August 29, 2005. ADDRESSES: Submit comments, identified by Regional Material in EDocket (RME) ID No. R05–OAR–2005– IN–0004, 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:// docket.epa.gov/rmepub/. Regional RME, EPA’s electronic public docket and comments system, is EPA’s preferred method for receiving comments. Once in the system, select ‘‘quick search,’’ then key in the appropriate RME Docket identification number. Follow the online instructions for submitting comments. E-mail: mooney.john@epa.gov. Fax: (312) 886–5824. Mail: You may send written comments to: John M. Mooney, Chief, Criteria Pollutant Section, (AR–18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Hand delivery: Deliver your comments to: John M. Mooney, Chief, Criteria Pollutant Section, (AR–18J), E:\FR\FM\29JYP1.SGM 29JYP1

Agencies

[Federal Register Volume 70, Number 145 (Friday, July 29, 2005)]
[Proposed Rules]
[Pages 43818-43820]
From the Federal Register Online via the Government Printing 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.

-----------------------------------------------------------------------

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: campbell.dave@epa.gov
    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 powers.marilyn@epa.gov.

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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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