	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2005-MD-0013]; FRL-       ]

Approval and Promulgation of Air Quality Implementation Plans; Maryland;
Amendments to the Control of Incinerators

	

AGENCY:  Environmental Protection Agency (EPA).

ACTION:   Final rule.

SUMMARY:  EPA is approving a State Implementation Plan (SIP) revision
submitted by the Maryland Department of the Environment (MDE).  This
revision pertains to amendments to the regulations for the control of
incinerators.  This action is being taken under the Clean Air Act (CAA
or the Act).                     

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-0013.  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:  Marilyn Powers, (215) 814-2308, or by
e-mail at   HYPERLINK "mailto:powers.marilyn@epa.gov" 
powers.marilyn@epa.gov .

SUPPLEMENTARY INFORMATION:  

I.  Background	

On January 31, 2006 (70 FR 5033), EPA published a notice of proposed
rulemaking (NPR) for the State of Maryland.  The NPR proposed approval
of the amendments to regulations .01 and .05 under COMAR 26.11.08
Control of Incinerators.  The formal SIP revision was submitted by the
MDE on October 31, 2005 (#05-06).  Other specific requirements of the
SIP revision and the rationale for EPA's proposed action are explained
in the NPR and will not be restated here.  On March 2, 2006, EPA
received an adverse comment on its January 31, 2006 NPR.  A summary of
the comment submitted and EPA(s response is provided in Section II of
this document.

II.  Summary of Public Comments and EPA Responses

Comment:  A commenter submitted test results from the following
pollutants: visible emissions, particulate matter, carbon monoxide,
nitrogen oxides, sulfur dioxide, hydrogen chloride, metals (cadmium,
mercury, and lead), dioxins, and furans concerning human and animal
crematories.  The test results show that the emissions of nearly all the
tested pollutants increased when the operating temperature was raised. 
From the test results, the commenter indicates that there is no benefit
to the higher operating temperatures required in many states.  The
commenter indicates that the test results also demonstrate that
crematories are capable of low emissions without the use of additional
control equipment.

Response:  This rulemaking is limited to the amendments of .01 and .05
under COMAR 26.11.08 Control of Incinerators.  These amendments define
the term (crematory( and clarify that crematories are subject to the 0.1
grain loading particulate matter requirement. This rulemaking does not
address visible emissions or emissions of carbon monoxide, nitrogen
oxides, sulfur dioxide, hydrogen chloride, metals, dioxins, and furans. 
Comments regarding emissions of these pollutants are not relevant to
this rulemaking.  EPA is required to respond only to comments relevant
to the rulemaking.  See, e.g., Whitman v. American Trucking Ass(n., 531
U.S. 457, 471 (2001).  To the extent that the comment addresses a
pollutant relevant to this rulemaking, such as particulate matter, the
commenter appears to be challenging the State(s decision to regulate
crematories in the particular manner it has chosen.  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 Electric Co. v. EPA, 427 U.S. 246, 264-266 (1976).  The
comment therefore presents no basis for EPA disapproving the proposed
SIP revision.

III. Final Action

EPA is approving Maryland(s SIP revision submitted on October 31, 2005.
 The SIP revision clarifies that crematories are subject to the
particulate matter requirements of COMAR 26.11.08 by amending the
definitions in section .01 and the emissions requirements in section
.05.

IV.   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 (Public Law 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 [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 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 approving a Maryland SIP revision that
amends COMAR 26.11.08 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, Particulate matter.

   August 29, 2008						/s/

______________________                                       
___________________________    

Dated:                            				Donald S. Welsh,                  
              								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 ( 52.1070, the table in paragraph (c) is amended by revising the
entries for COMAR 10.18.08.01 and 10.18.08.05 to read as follows:

( 52.1070  		Identification of plan.

*		*		*		*		*

(c)* * *

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  



          *            *               *              *              *  
              *             * 



COMAR 10.18.08/26.11.08	

Control of Incinerators



10.18.08/26.11.08.01	

Definitions	

9/12/05	

[Insert Federal Register publication date]

[Insert page number where the document begins]	

Definition of “crematory” is added.





 *             *               *                *                *      
        *           *



10.18.08/26.11.08.05	

Particulate Matter	

9/12/05	

[Insert Federal Register publication date]

[Insert page number where the document begins]	

Sections .05A(3) and .05B(2)(a) are revised.



*             *               *                *                *       
       *           *



*  	*	*	*	*

 PAGE  7 

