	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2007-1120; FRL-      ]

	Approval and Promulgation of Air Quality Implementation Plans;
Maryland; Reasonably Available Control Technology Requirements for
Marine Vessel and Barge Loading

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 establishes and
requires reasonably available control technology (RACT) for the control
of volatile organic compound (VOC) emissions from marine vessel and
barge loading.  EPA is approving this SIP revision in accordance with
the Clean Air Act (CAA).

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-2007-1120.  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: Gobeail McKinley, (215) 814-2033, or by
e-mail at mckinley.gobeail@epa.gov.  

SUPPLEMENTARY INFORMATION:  

I.  Background	

On April 15, 2008 (73 FR 20234), EPA published a notice of proposed
rulemaking (NPR) for the State of Maryland.  The NPR proposed approval
of the control of VOC emissions from marine vessel and barge loading by
establishing RACT requirements.  The formal SIP revision was submitted
by the Maryland Department of the Environment (MDE) on October 24, 2007.
 

II.  Summary of SIP Revision

The Maryland Department of the Environment submitted this revision to
the SIP to establish reasonably available control technology
requirements for marine vessel and barging loading.  The SIP revision
includes amendments to Regulation .01 and adoption of new Regulation .08
under COMAR 26.11.13 Control of Gasoline and Volatile Organic Compound
Storage and Handling.  The amendment to COMAR 26.11.13.01 consists of a
new definition that defines a marine vessel as any tank ship or barge
that transports VOCs in bulk as cargo.  The new regulation COMAR
26.11.13.08 requires owners or operators of barge loading facilities in
Baltimore City, Anne Arundel, Baltimore, Calvert, Carroll, Cecil,
Charles, Frederick, Harford, Howard, Montgomery, and Prince George’s
Counties to reduce capture of VOC vapors by 90 percent if emissions from
the barge loading equal or exceed 25 tons per year (TPY).  In the rest
of the state (Allegheny, Caroline, Dorchester, Garrett, Kent, Queen
Anne’s, St. Mary’s, Somerset, Talbot, Washington, Wicomico, and
Worchester Counties), controls are required if emissions are equal to or
exceed 50 TPY.  

The rationale for EPA's proposed action are explained in the NPR and
will not be restated here.  On April 15, 2008, EPA received a comment on
the April 15, 2008 NPR.  A summary of the comment submitted and EPA(s
response is provided in Section III of this document.

III.  Summary of Public Comments and EPA Response

Comment:  A single commenter questions why the state is establishing a
RACT standard for marine vessel and barge loading instead of a Best
Available Control Technology (BACT) or Maximum Achievable Control
Technology (MACT) standard.  The commenter also claims that established
BACT and MACT standards would achieve greater control than the proposed
RACT standard, though at cost ranging from somewhat less than estimated
by the state.

Response:  These amendments, submitted by the State of Maryland
establishing RACT requirements for VOC emissions from marine vessel and
barge loading, are being approved by EPA because EPA has determined that
they properly represent RACT for this source category.  Since the
1970's, EPA has consistently interpreted RACT to mean the lowest
emission limit that a particular source is capable of meeting by the
application of the control technology that is reasonably available
considering technological and economic feasibility.  See, e.g., 72 FR
20586 at 20610 (April 25, 2007).  Maryland submitted this SIP revision
request pursuant to the RACT requirements of sections 182 and 184 of the
CAA.  Other provisions of the CAA may require BACT or MACT level
controls for sources.  However, these are generally considered to be
more stringent than RACT, and thus, the controls necessary to meet BACT
or MACT requirements may not be the same as controls that would meet the
RACT requirement.

Maryland is located in the Ozone Transport Region (OTR) that was created
by section 184 of the CAA.  Section 184(b)(1)(B) of the CAA requires
that Maryland implement RACT regulations on all VOC sources that have
the potential to emit 50 TPY or more.  In addition, section 182(b)(2)
requires that Maryland implement RACT regulations on all major sources
of VOC in moderate or above ozone nonattainment areas within the State. 
Major VOC sources are those with the potential to emit at least 100 TPY
in moderate areas, 50 TPY in serious areas, and 25 TPY in severe areas. 
 

BACT, on the other hand, is a case-by-case emissions limitation based on
the maximum degree of reduction of a regulated pollutant emitted from a
major new source or a major modification of an existing source, as
determined by application of EPA’s Prevention of Significant
Deterioration regulations, 40 C.F.R. 52.21, which are authorized by
Sections 160 – 169 of the CAA.  BACT, therefore, is determined by a
different standard than RACT and does not apply to unmodified existing
sources that would be covered by the RACT rule. 

 

Similarly, MACT is also a distinct legal requirement and is determined
through a different standard than RACT.  MACT standards are designed to
reduce hazardous air pollutants emissions to a maximum achievable
degree, taking into account factors such as cost and energy
requirements, as set forth at 40 CFR 63.41, and as authorized by section
112 of the CAA.  Although EPA has promulgated a standard for barge
loading (40 CFR Part 63 Subpart Y), as with BACT, not every source
required to be covered by the Maryland RACT rule would be required to
have a MACT limit, and the definition of MACT takes into account factors
that are not required for RACT. 

In sum, RACT, MACT, and BACT are potentially overlapping emissions
limitation requirements, authorized by different provisions of the CAA,
directed to remedy distinct problems (RACT, in this case, to help attain
the federal ozone standard by controlling emissions of VOC, an ozone
precursor; BACT to prevent significant deterioration in areas attaining
a federal standard through permitting of new and modified sources; and
MACT to control emissions of listed hazardous air pollutants), covering
different (but potentially overlapping) subsets of sources, and based on
different control standards.

The commenter's failure to document and support either cost data
provided in the comment, or the methodology the commenter used to
determine BACT/MACT, prevents EPA from ascertaining whether or not the
commenter has properly determined BACT/MACT for these operations, the
relative costs compared to the RACT adopted by the State, where the cost
data supplied in the comment comes from, or if it is valid.  Mere
assertions, without analysis, that EPA's proposal is wrong are an
insufficient basis for EPA to disapprove this SIP.  See International
Fabricare Inst. v. EPA, 972 F.2d 384 (D.C.Cir. 1992).

EPA has evaluated Maryland’s SIP submittal and determined that the
Maryland regulation meets the requirements for RACT.  Because this SIP
revision meets the criteria for RACT, as well as the other approvability
criteria, EPA must approve this SIP revision.  See  SEQ CHAPTER \h \r 1 
section 110(k)(3) of the CAA, 42 U.S.C. 7410(k)(3); see also, Union
Elec. Co. v. EPA, 427 U.S. 246, 265, 96 S.Ct. 2518, 49 L.Ed.2d 474
(1976).    

III.  Final Action

EPA is approving the control of volatile organic compound emissions by
establishing reasonably available control technology requirements for
marine vessel and barge loading as a revision to the Maryland SIP which
was submitted on October 24, 2007.  This regulation will result in the
reduction of VOC emissions from the affected sources.  

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 pertaining to Maryland’s amendments to
the control of volatile organic compound emissions by establishing RACT
requirements for marine vessel and barge loading 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, Intergovernmental relations, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.

                        _____________/s/______________    

Dated:     July 2, 2008            				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
entry for COMAR 26.11.13.01 and adding the entry for COMAR 26.11.13.08
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 26.11.13	Control of Gasoline and Volatile Organic Compound Storage
and Handling

           *            *               *              *              * 
               *             *



26.11.13.01

	

Definitions 

	

10/8/07	

[Insert Federal Register publication date]

[Insert page number where the document begins]	









26.11.13.08

	

Control of VOC Emissions from Marine Vessel Loading 

	

10/8/07	

[Insert Federal Register publication date]

[Insert page number where the document begins]	

New regulation





 *             *               *                *                *      
        *           *



*	*	*	*	*

 PAGE   

 PAGE  9 

 PAGE  11 

