	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2005-MD-0002; FRL-         ]

Approval and Promulgation of Air Quality Implementation Plans;

	Maryland; Clarification of Visible Emissions Exceptions

	

AGENCY:	Environmental Protection Agency (EPA).

ACTION:	Final rule.

SUMMARY:  EPA is approving a State Implementation Plan (SIP) revision
submitted by the State of Maryland.  This revision consists of
clarifications to the exception provisions of the Maryland visible
regulations. 

EFFECTIVE DATE:  This final rule is effective on [insert date 30 days
from date of publication].

ADDRESSES:  EPA has established a docket for this action under Docket
ID Number EPA-R03 OAR-2005-MD-0002.  All documents in the docket are
listed in the www.regulations.gov website.   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 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: Linda Miller, (215) 814-2068, or by
e-mail at miller.linda@epa.gov.  

SUPPLEMENTARY INFORMATION:  

I.	Background	

On December 1, 2003, the State of Maryland submitted a formal SIP
revision (#03-10) that clarifies Maryland(s federally-approved general
visible emissions (VE) regulations, including those related to specific
source categories.  The revised language will ensure that sources
correctly interpret the exception provisions provided in those
regulations.  On April 26, 2005 (70 FR 21337), EPA published a direct
final rule (DFR) approving revisions to Maryland(s SIP pertaining to its
VE regulations.   

An explanation of the CAA(s requirements and EPA(s rationale for
approving this SIP revision were provided in the DFR and will not be
restated here.  In accordance with direct final rulemaking procedures,
on April 26, 2005 (70 FR 21387), EPA also published a companion notice
of proposed rulemaking (NPR) for this SIP revision inviting interested
parties to comment on the DFR.  Timely adverse comments were submitted
on EPA(s April 26, 2005 DFR.

On June 27, 2005 (70 FR 36844), due to the receipt of adverse comments
submitted in response to the DFR, EPA published a withdrawal of the DFR.
 A summary of those comments and EPA(s responses are provided in Section
II of this document.

II.	Public Comment and EPA Response

Comment:  EPA received the same comment on behalf of two commenters.  
The commenters state that the federal new source performance standards
(NSPS) and national emission standards for hazardous air pollutants
(NESHAPs) regulations allow exceedance of their respective opacity
standards for up to three hours per occurrence during periods of
startup, shutdown and repair.  These federal regulations require the
installation of continuous opacity monitors (COM).   The commenters
claim that air pollution control equipment on certain municipal waste
combustion (MWC) sources cannot achieve the visible emissions exception
requirements as stated in Maryland(s clarified visible emissions rule
due to the occasional formation of (condensed( plumes after emissions
exit the stack, as a result of upset conditions that may occur during
the operation of emission control devices used to reduce nitrogen oxides
(NOX) emissions.  The commenters believe that Maryland(s regulations
regarding VE exceptions should be revised to be consistent with the
existing federal NSPS and NESHAP regulations for MWCs.

Response:  EPA understands that the VE requirements established in
Maryland(s regulations differ from those established in the NSPS and
NESHAP regulations that currently apply to MWCs.  States have frequently
used VE limits as part of their efforts to attain the NAAQS.   Under the
CAA(s bifurcated scheme, the State is responsible for choosing how a
source must be regulated for purposes of attaining the NAAQS and EPA(s
role is limited in reviewing the State(s choice to ensure it meets the
minimum statutory requirements.  Here, the commenter is not claiming
that the regulations do not meet the statutory minimum, but rather that
Maryland is seeking to require more than the minimum statutory
requirements.  The CAA is based upon "cooperative federalism," which
contemplates that each State will develop its own SIP, and that States
retain a large degree of flexibility in choosing which sources to
control and to what degree.  EPA must approve a State's plan if it 
meets the "minimum requirements of the CAA.  Union Elec. Co. v. EPA, 427
U.S. 246, 264-266 (1976).

III. Final Action

EPA is approving revisions to the Maryland VE exception provisions as a
revision to the Maryland SIP. 

IV.   Statutory and Executive Order Reviews 

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 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).  This
action merely approves 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 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 approves a state rule implementing a Federal standard.

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.  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 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 [insert date 60 days from date of
publication of this document in the Federal Register].  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 to approve revisions to the Maryland
regulations which clarify the visible emissions exception provisions may
not be challenged later in proceedings to enforce its requirements 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, Particulate matter,
Reporting and recordkeeping requirements.

                                                                        
                         /s/

                        ___________________________    

Dated:   7/19/07                      				William T. Wisniewski, Acting 
                             							Regional Administrator,

                                  					Region III.



	40 CFR part 52 is amended as follows: 

PART 52 - [AMENDED] 

1.The authority citation for part 52 continues to read as follows: 

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

Subpart V( Maryland

2. In Section  52.1070, the table in paragraph (c) is amended by
revising the entries for COMAR  26.11.06.02, 10.18.08 (Title),
10.18.08.04, 26.11.09.05, and 26.11.10.03 to read as follows: 

( 52.1070  		Identification of plan.

*		*		*		*		*

(c)   EPA approved regulations.

       EPA-APPROVED REGULATIONS IN THE MARYLAND SIP

Code of Maryland administrative regulations (COMAR) citation	

Title/subject	

State effective date	

EPA approval date	

Additional explanation/

citation at 40 CFR ( 52.1100  



          *            *               *              *              *  
              *             * 



 26.11.06	

General Emission Standards, Prohibitions, and Restrictions



          *            *               *              *              *  
              *             * 



26.11.06.02

[Except:  .02A(1)(e), (1)(g), (1)(h), (1)(i)]	

Visible Emissions	

11/24/03	

[Insert Federal Register publication date]

[Insert page number where the document begins]	

Revised paragraph 26.11.02.02A(2)



 *             *               *                *                *      
        *           *



10.18.08/

26.11.08	

Control of Incinerators



*             *               *                *                *       
       *           *



10.18.08.04/

26.11.08.04	

Visible Emissions	

11/24/03	

[Insert Federal Register publication date]

[Insert page number where the document begins]	

Revised COMAR citation; revised paragraph  26.11.08.04C.



*             *               *                *                *       
       *           *



26.11.09 	

Control of Fuel-Burning Equipment, Stationary Internal Combustion
Engines, and Certain Fuel-Burning Installations



 *             *               *                *                *      
        *           *



26.11.09.05	

Visible Emissions	

11/24/03	

[Insert Federal Register publication date]

[Insert page number where the document begins]	

Revised paragraph 26.11.09.05A(3)



 *             *               *                *                *      
        *           *



 26.11.10	

Control of Iron and Steel Production Installations



 *             *               *                *                *      
        *           *



26.11.10.03	

Visible Emissions	

11/24/03	

[Insert Federal Register publication date]

[Insert page number where the document begins]	

Revised paragraph 26.11.10.03A(2)



 *             *               *                *                *      
        *           *



*	*	*	*	*

 PAGE   

 PAGE   2 

 PAGE  9 

