	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2009-0034; FRL-       ]

	Approval and Promulgation of Air Quality Implementation Plans;

	Maryland; Clean Air Interstate Rule

 

AGENCY:	Environmental Protection Agency (EPA).

ACTION:	Final rule.

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 D.C. Circuit found CAIR to be flawed, the
rule was remanded without vacatur and thus remains in 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sources to be automatically withdrawn.  

EFFECTIVE DATE:  The final rule is effective on [Insert date of
publication].

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 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 powers.marilyn@epa.gov.  

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. 

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.  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.

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
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 (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 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 

Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides.

October 20, 2009___					__________/s/_________________

Dated:							William C. Early, 

                                                                        
           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 ( 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:

( 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  



          *            *               *              *              *  
              *             * 



    26.11.28             Clean Air Interstate Rule

26.11.28.01	Definitions	

6/16/08	

[Insert Federal Register publication date]

[Insert page number where the document begins]	



26.11.28.02	Incorporation By Reference	

6/16/08	

[Insert Federal Register publication date]

[Insert page number where the document begins]

	26.11.28.03	Affected Units and General Requirements	

6/16/08	

[Insert Federal Register publication date]

[Insert page number where the document begins]

	26.11.28.04	Requirements for New Affected Trading Units and NOx Set
Aside Pool	

6/16/08	

[Insert Federal Register publication date]

[Insert page number where the document begins]

	26.11.28.05	NOx Allowances for Renewable Energy Projects and Consumers
of Electric Power	

6/16/08	

[Insert Federal Register publication date]

[Insert page number where the document begins]

	26.11.28.06	NOx Allowances to be Distributed to Consumers of Electric
Power	

6/16/08	

[Insert Federal Register publication date]

[Insert page number where the document begins]

	26.11.28.07	Distribution of Unused NOx Allowances in the Set Aside Pool


6/16/08	

[Insert Federal Register publication date]

[Insert page number where the document begins]

	26.11.28.08	Allocation of NOx Allowances	

6/16/08	

[Insert Federal Register publication date]

[Insert page number where the document begins]	

Annual and Ozone Season Allocations start in 2010 instead of 2009



*            *               *              *              *            
    *             *



*             *             *            *            *

§ 52.1084 [Removed and Reserved]

3.  Section 52.1084 is removed and reserved.

§ 52.1085 [Removed and Reserved]

4.  Section 52.1085 is removed and reserved.

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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