	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2009-0058; FRL-        ] 

	Approval and Promulgation of Air Quality Implementation Plan; Maryland;
 

Reasonably Available Control Technology Requirements for Volatile
Organic Compounds 

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Direct final rule.

SUMMARY:  EPA is taking final action to fully approve revisions to the
Maryland State Implementation Plan (SIP).  The revisions pertain to
Maryland’s major source volatile organic compound (VOC) reasonable
available control technology (RACT) regulation.  EPA is converting the
conditional limited approval status of Maryland’s VOC RACT regulations
to a full approval because EPA has approved all of the case-by-case RACT
determinations submitted by Maryland pursuant to the generic provisions
of its VOC RACT regulation as well as all of the RACT requirements for
categories of VOC sources submitted by Maryland in accordance with the
requirements of the Clean Air Act (CAA).

             

DATES:  This rule is effective on [Insert date 60 days after publication
in the Federal Register] without further notice, unless EPA receives
adverse written comment by [Insert date 30 days after publication in the
Federal Register].  If EPA receives such comments, it will publish a
timely withdrawal of the direct final rule in the Federal Register and
inform the public that the rule will not take effect.

ADDRESSES:  Submit your comments, identified by Docket ID Number
EPA-R03-OAR-2009-0058 by one of the following methods:

 www.regulations.gov.  Follow the on-line instructions for submitting
comments.

     B.    E-mail:    HYPERLINK "mailto:fernandez.cristina@epa.gov" 
fernandez.cristina@epa.gov 

     C.    Mail:  EPA-R03-OAR-2009-0058, Cristina Fernandez, Chief, Air
Quality Planning Branch, Mail code 3AP21, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

     D.   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 Docket ID No.
EPA-R03-OAR-2009-0058.  EPA's policy is that all comments received will
be included in the public docket without change, and may be made
available online at www.regulations.gov, 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 www.regulations.gov or
e-mail.  The www.regulations.gov website is an (anonymous access(
system, which means EPA will not know your identity or contact
information unless you provide it in the body of your comment.  If you
send an e-mail comment directly to EPA without going through
www.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
www.regulations.gov index. 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 www.regulations.gov 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 Maryland Department of the Environment, 1800 Washington
Boulevard, Suite 705, Baltimore, Maryland, 21230.

FOR FURTHER INFORMATION CONTACT:  Jacqueline Lewis, (215) 814- 2037, or
by e-mail at lewis.jacqueline@epa.gov. 

SUPPLEMENTARY INFORMATION:  

I.  Background

Under section 184 of the CAA, RACT as specified in sections 182(b)(2)
and 182(f) applies throughout the ozone transport region (OTR).  The
entire State of Maryland is located within the OTR.  Therefore, RACT is
applicable statewide in Maryland.  The major source size generally is
determined by the classification of the area in which the source is
located.  However, for areas located in the OTR, the major source size
for stationary sources of VOCs is 50 tons per year (tpy) unless the
area’s ozone classification prescribes a lower major source threshold.
 The VOC RACT regulations that apply to source categories of VOCs are
generally those VOC RACT regulations adopted by a state based upon
Control Technique Guideline (CTG) documents issued by EPA.  The CTGs
provide “presumptive RACT emission limitations” for categories of
major VOC sources.  Major sources of VOC that are subject to RACT, but
that are not covered by a regulation adopted by a state pursuant to a
CTG are referred to as non-CTG VOC RACT sources.  The State of Maryland
was required to adopt and submit as SIP revisions VOC RACT regulations
for the CTG documents issued between November 15, 1990 and the date of
1-hour ozone attainment, and the CTG documents issued prior to November
15, 1990.  For major non-CTG VOC sources (not otherwise already subject
to RACT pursuant to a source category regulation under the Maryland
SIP), the State’s VOC RACT regulations contain a “generic” RACT
provision.  A generic RACT regulation is one that does not, itself,
specifically define RACT for a source or source categories, but instead
allows for case-by-case RACT determinations.  The generic provisions of
Maryland’s VOC RACT regulation allow for Maryland Department of the
Environment (MDE) to make case-by-case RACT determinations that are then
to be submitted to EPA for approval as revisions to the Maryland SIP. 
Lastly, the Maryland SIP includes RACT regulations submitted by Maryland
and approved by EPA for categories of VOC sources not covered by a CTG. 


On April 5, 1991, the State of Maryland formally submitted amendments to
its air quality regulations to EPA as a SIP revision.  Among the
amendments submitted were revisions to Maryland Code of Regulations
(COMAR) 26.11.06.06 for Maryland’s minor VOC source requirements and
the addition of COMAR 26.11.19.02G, which requires RACT for major
sources of VOC that are not covered by Maryland’s category specific
VOC RACT regulations.   

 

The April 5, 1991 submittal was amended on June 8, 1993 to establish
statewide applicability for COMAR 26.11.19.02G and to lower the RACT
applicability threshold for non-CTG sources of VOC in Maryland.  The
expanded the geographic applicability of COMAR 26.11.06.06 did result in
the regulation of VOC sources which were previously not regulated.  
However, the MDE made other specific amendments to COMAR 26.11.06.06,
found at 26.11.06.06A which narrowed the applicability of COMAR
26.11.06.06B such that certain sources in Maryland’s pre-enactment
nonattainment areas that were previously subject to COMAR 26.11.06.06B
were no longer covered by any enforceable emissions limit until such
time as Maryland approved case-by-case VOC RACT requirements for them
pursuant to the generic RACT provisions of  COMAR 26.11.19.02G.  This
resulted in a temporary lapse of coverage for previously regulated
non-CTG  major VOC sources in the State of Maryland.  

EPA proposed conditional approval of Maryland’s April 5, 1991 and June
8, 1993 submittals pertaining to COMAR 26.11.19.02G and COMAR
26.11.06.06 on March 1, 1996 (61 FR 8009). On September 4, 1998, EPA
withdrew the March 1, 1996 proposed conditional approval, and published
a direct final rule (63 FR 47174) granting a conditional limited
approval of the revisions to COMAR 26.11.19.02G and COMAR 26.11.06.06. 
In the September 4, 1998 direct final rule, EPA stated that the
conditional nature of its approval would be satisfied once the MDE
either (1) certifies that it has submitted case-by-case RACT proposals
for all sources subject to the RACT requirements currently known to MDE;
or (2) demonstrates that the emissions from any remaining subject
sources represent a de minims level of emissions as defined in the
September 4, 1998 rulemaking.  The MDE was to satisfy the terms of the
conditional approval by a date certain no later than 12 months after the
effective date of EPA’s final conditional approval.  EPA also stated
that the limited approval status would be converted to full approval
once EPA had approved all of the case-by-case RACT requirements
submitted by MDE as SIP revisions.    

On December 19, 2008, MDE submitted a letter to EPA, certifying that it
had met the terms and conditions imposed by EPA in the September 4, 1998
(63 FR 47174) conditional limited approval.  The MDE stated that it had
fulfilled the terms and conditions of the conditional limited approval
by submitting case-by-case VOC RACT facility determinations,
category-specific VOC RACT and generic VOC RACT regulations for approval
as SIP revisions. 

EPA has reviewed the Maryland SIP and determined that MDE has submitted
RACT regulations for the sources covered by the CTG documents issued
between November 15, 1990 and the date of 1-hour ozone attainment, and
the CTG documents issued prior to November 15, 1990; case-by-case RACT
requirements for three facilities under its generic VOC RACT rule; and
category-specific VOC RACT regulations for the remaining VOC sources
located in the State of Maryland.  EPA has approved all of these
Maryland submissions as SIP revisions.  (See 40 CFR Part 52.1070 for the
list and Federal Register citations of all EPA-approved regulations and
requirements of the Maryland SIP.)  For these reasons EPA is converting
the conditional limited approval status of COMAR 26.11.19.02G and COMAR
26.11.06.06 to a full approval.   

Because EPA published its final rule granting conditional limited
approval of COMAR 26.11.19.02G and COMAR 26.11.06.06 on September 4,
1998 (63 FR 47174) and that final rule had an effective date of November
3 1998, the letter submitted by MDE on December 19, 2008 satisfying the
conditional nature EPA’s approval should have been submitted by MDE no
later than November 3, 1998.  Under 110(k)(4) of the CAA, unless the
State satisfies the terms of a conditional approval of a SIP submission
within a date certain which may not exceed more than 12 months from the
effective date of the conditional approval, EPA is to treat the
conditional approval as a disapproval.  Only recently has EPA realized
that MDE did not submit the letter to EPA certifying that it had met the
terms and conditions imposed by EPA in the September 4, 1998 (63 FR
47174) conditional limited approval rule within the specified 12-month
time period from the November 3, 1998 effective date of that rule.  EPA
acknowledges its oversight for not treating the September 4, 1998 (63 FR
47174) conditional approval as a disapproval for Maryland’s failure to
satisfy the terms of the conditional approval within the one year period
of time provided, and for not commencing the sanctions clocks such a
disapproval would have engendered pursuant to Section 179 of the CAA. 
However, at this point in time, given that MDE has submitted and EPA has
approved as SIP revisions VOC RACT requirements for all major sources of
VOC in that State of Maryland as required by the CAA, there is no
purpose served in treating the September 4, 1998 conditional as a
disapproval.   If EPA had treated its conditional approval as
disapproval and had commenced the sanctions clocks or imposed sanctions,
the remedy to halt the clocks or lift the sanctions would have been for
Maryland to submit and for EPA to approve as SIP revisions RACT for all
major VOC sources in Maryland.  That remedy has been fulfilled.      

II.  Final Action

EPA is converting its conditional limited approval of revisions to COMAR
26.11.19.02G and COMAR 26.11.06.06 to a full approval because Maryland
has satisfied the terms and conditions imposed in EPA’s conditional
limited approval published on September 4, 1998 (63 FR 47174) and
because EPA has approved all of the case-by-case RACT determinations
made by MDE under Maryland’s generic VOC RACT rule.  EPA has reviewed
the Maryland SIP and determined that MDE has submitted RACT regulations
for the sources covered by the CTG documents issued between November 15,
1990 and the date of 1-hour ozone attainment, and the CTG documents
issued prior to November 15, 1990; case-by-case RACT requirements for
three facilities under its generic VOC RACT rule; and category-specific
VOC RACT regulations for the remaining VOC sources located in the State
of Maryland.  EPA has approved all of these Maryland submissions as SIP
revisions in accordance with the requirements of section 110 the CAA.

EPA is publishing this rule without prior proposal because the Agency
views this as a noncontroversial amendment and anticipates no adverse
comment.  However, in the (Proposed Rules( section of today(s Federal
Register, EPA is publishing a separate document that will serve as the
proposal to approve the SIP revision if adverse comments are filed. 
This rule will be effective on [Insert date 60 days from date of
publication in the Federal Register] without further notice unless EPA
receives adverse comment by [Insert date 30 days from date of
publication in the Federal Register].  If EPA receives adverse comment,
EPA will publish a timely withdrawal in the Federal Register informing
the public that the rule will not take effect.  EPA will address all
public comments in a subsequent final rule based on the proposed rule. 
EPA will not institute a second comment period on this action.  Any
parties interested in commenting must do so at this time.

III.  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.  Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the proposed rules
section of today's 

Federal Register, rather than file an immediate petition for judicial
review of this direct final rule, so that EPA can withdraw this direct
final rule and address the comment in the proposed rulemaking.  This
action converting the conditional limited approval to a full approval of
revisions to COMAR 26.11.19.02G and COMAR 26.11.06.06 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, Volatile organic
compounds.

                                                                        
            

                                                                        
             

_February 24, 2009________________                  
_________/s/_________________

Dated:                                				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 ( 52.1070, the table in paragraph (c) is amended by revising the
entry for COMAR 26.11.19.02G 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  



          *            *               *              *              *  
              *             * 



26.11.19	

Volatile Organic Compounds from Specific Processes

26.11.19.02	Applicability, Determining Compliance, Reporting, and
General Requirements	

05/04/98 12/10/01	

[Insert Federal Register publication date]

[Insert page number where the document begins]	

(c) (174), (c) (175). On 2/27/03 (68 FR 9012), EPA approved a revised
rule citation with a State effective date of 5/8/95 

[(c)(182)(i)(D)].



 *             *               *                *                *      
        *           *



*                      *                     *                  *       
                *

3.  In §52.1072, the table in paragraph (d) is removed and reserved.

4. In §52.1073, the table in paragraph (e) is removed and reserved.

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