[Federal Register: July 18, 2008 (Volume 73, Number 139)]
[Rules and Regulations]
[Page 41268-41271]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18jy08-14]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2007-1120; FRL-8693-5]
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.
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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).
DATES: Effective Date: This final rule is effective on August 18, 2008.
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 http://www.regulations.gov Web site. 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 http://
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
[[Page 41269]]
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 CFR 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 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
[[Page 41270]]
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 (Pub. L. 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 September 16, 2008. 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.
Dated: July 2, 2008.
Donald S. Welsh,
Regional Administrator, Region III.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart V--Maryland
0
2. In Sec. 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:
Sec. 52.1070 Identification of plan.
* * * * *
(c)* * *
[[Page 41271]]
EPA-Approved Regulations in the Maryland SIP
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Code of Maryland administrative State Additional explanation/citation at 40
regulations (COMAR) citation Title/subject effective date EPA approval date CFR 52.1100
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COMAR 26.11.13 Control of Gasoline and Volatile Organic Compound Storage and Handling
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* * * * * * *
26.11.13.01....................... Definitions.......... 10/8/07 07/18/08 [Insert page number where the
document begins].
26.11.13.08....................... Control of VOC 10/8/07 07/18/08 [Insert page number where the New regulation
Emissions from document begins].
Marine Vessel
Loading.
* * * * * * *
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[FR Doc. E8-16272 Filed 7-17-08; 8:45 am]
BILLING CODE 6560-50-P