42038 Federal Register / Vol. 74, No. 160 / Thursday, August 20, 2009 / Proposed Rules 

Dated: August 4, 2009. 

Mary E. Landry, 

Rear Admiral, U.S. Coast Guard Commander, 

Eighth Coast Guard District. 

[FR Doc. E9–19957 Filed 8–19–09; 8:45 am] 

BILLING CODE 4910–15–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2009–0034; FRL–8946–9] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Maryland; Clean Air Interstate Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

State Implementation Plan (SIP) 

revisions submitted by the State of 

Maryland on October 24, 2007 and June 

30, 2008, except for the 2009 nitrogen 

oxides (NOX) ozone season and NOX

annual allocations, the 2009 set-aside 

allocations and the Compliance 

Supplement Pool (CSP) allocations. 

These revisions address the 

requirements of EPA’s Clean Air 

Interstate Rule (CAIR). Although the 

District of Columbia (DC) Circuit found 

CAIR to be flawed, the rule was 

remanded without vacatur and thus 

remains in place. Thus, EPA is 

continuing to approve CAIR provisions 

into SIPs as appropriate. CAIR, as 

promulgated, requires States to reduce 

emissions of sulfur dioxide (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 EPAadministered cap-and-trade programs 

addressing SO2, NOX annual, and NOX

ozone season emissions. In the full SIP 

revisions that EPA is proposing to 

approve, Maryland will meet CAIR 

requirements by participating in these 

cap-and-trade programs. EPA is 

proposing to approve the full SIP 

revisions, as interpreted and clarified 

herein, as fully implementing the CAIR 

requirements for Maryland, except for 

the 2009 NOX ozone season and NOX

annual allocations, the 2009 set-aside 

allocations and the CSP allocations. 

DATES: Written comments must be 

received on or before September 21, 

2009. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2009–0034 by one of the 

following methods: 

A. http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

B. E-mail: 

fernandez.cristina@epa.gov. 

C. Mail: EPA–R03–OAR–2009–0034, 

Cristina Fernandez, Chief, Air Quality 

Planning Branch, Mailcode 3AP21, U.S. 

Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

D. Hand Delivery: At the previouslylisted 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– 

0034. EPA’s policy is that all comments 

received will be included in the public 

docket without change, and may be 

made available online at http:// 

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 http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site 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 http:// 

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 

http://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 http:// 

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 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 Is EPA Proposing? 

II. What Is the Regulatory History of CAIR 

and the CAIR Federal Implementation 

Plans (FIP)? 

III. What Are the General Requirements of 

CAIR and the CAIR FIPs? 

IV. What Are the Types of CAIR SIP 

Submittals? 

V. Analysis of Maryland’s CAIR SIP 

Submittal 

A. State Budgets for Allowance Allocations 

B. CAIR Cap-and-Trade Programs 

C. Applicability Provisions for NonElectric Generating Units (non-EGU) 

Sources 

D. NOX Allowance Allocations 

E. Allocation of NOX Allowances From 

Compliance Supplement Pool 

F. Individual Opt-in Units 

G. Clarification of Other Provisions in 

Maryland’s CAIR Rule 

VI. Proposed Action 

VII. Statutory and Executive Order Reviews 

I. What Action Is EPA Proposing? 

EPA is proposing to approve, as 

interpreted and clarified herein, the full 

CAIR SIP revisions, submitted by 

Maryland on October 24, 2007 and June 

30, 2008, as meeting the applicable 

CAIR requirements by requiring certain 

electric generating units (EGUs) to 

participate in the EPA-administered 

CAIR cap-and-trade programs 

addressing SO2, NOX annual, and NOX

ozone season emissions. The October 

24, 2007 SIP revision consisted of new 

Maryland rule COMAR 26.11.28—Clean 

Air Interstate Rule (Maryland revision 

#07–14). The June 30, 2008 SIP revision 

consisted of revisions to Regulations .01 


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to .07 of COMAR 26.11.28 (Maryland 

revision #08–08). 

II. What Is the Regulatory History of the 

CAIR and the CAIR Federal 

Implementation Plans (FIPs)? 

EPA published CAIR on May 12, 2005 

(70 FR 25162). In this rule, EPA 

determined that 28 States and the 

District of Columbia contribute 

significantly to nonattainment and 

interfere with maintenance of the 

NAAQS for fine particles (PM2.5) and/or 

8-hour ozone in downwind States in the 

eastern part of the country. As a result, 

EPA required those upwind States to 

revise their SIPs to include control 

measures that reduce emissions of SO2, 

which is a precursor to PM2.5 formation, 

and/or NOX, which is a precursor to 

both ozone and PM2.5 formation. For 

jurisdictions that contribute 

significantly to downwind PM2.5

nonattainment, CAIR sets annual Statewide emission reduction requirements 

(i.e., budgets) for SO2 and annual Statewide emission reduction requirements 

for NOX. Similarly, for jurisdictions that 

contribute significantly to 8-hour ozone 

nonattainment, CAIR sets State-wide 

emission reduction requirements or 

budgets for NOX for the ozone season 

(May 1st to September 30th). Under 

CAIR, States may implement these 

reduction requirements by participating 

in the EPA-administered cap-and-trade 

programs or by adopting any other 

control measures. 

CAIR explains to subject States what 

must be included in SIPs to address the 

requirements of section 110(a)(2)(D) of 

the Clean Air Act (CAA) with regard to 

interstate transport with respect to the 

8-hour ozone and 1997 PM2.5 NAAQS. 

EPA made national findings, effective 

on May 25, 2005, that the States had 

failed to submit SIPs meeting the 

requirements of section 110(a)(2)(D). 

The SIPs were due in July 2000, three 

years after the promulgation of the 8- 

hour ozone and PM2.5 NAAQS. These 

findings started a 2-year clock for EPA 

to promulgate a FIP to address the 

requirements of section 110(a)(2)(D). 

Under CAA section 110(c)(1), EPA may 

issue a FIP anytime after such findings 

are made and must do so within two 

years unless a SIP revision correcting 

the deficiency is approved by EPA 

before the FIP is promulgated. 

On April 28, 2006, EPA promulgated 

FIPs for all States covered by CAIR in 

order to ensure the emissions reductions 

required by CAIR are achieved on 

schedule. The CAIR FIPs require EGUs 

to participate in the EPA-administered 

CAIR SO2, NOX annual, and NOX ozone 

season trading programs, as appropriate. 

The CAIR FIP SO2, NOX annual, and 

NOX ozone season trading programs 

impose essentially the same 

requirements as, and are integrated 

with, the respective CAIR SIP trading 

programs. The integration of the FIP and 

SIP trading programs means that these 

trading programs will work together to 

create effectively a single trading 

program for each regulated pollutant 

(SO2, NOX annual, and NOX ozone 

season) in all States covered by the 

CAIR FIP or SIP trading program for that 

pollutant. Further, as provided in a rule 

published by EPA on November 2, 2007, 

a State’s CAIR FIPs are automatically 

withdrawn when EPA approves a SIP 

revision, in its entirely and without any 

conditions, as fully meeting the 

requirements of CAIR. Where only 

portions of the SIP revision are 

approved, the corresponding portions of 

the FIPs are automatically withdrawn 

and the remaining portions of the FIP 

stay in place. Finally, the CAIR FIPs 

also allow States to submit abbreviated 

SIP revisions that, if approved by EPA, 

will automatically replace or 

supplement certain CAIR FIP provisions 

(e.g., the methodology for allocating 

NOX allowances to sources in the State), 

while the CAIR FIP remains in place for 

all other provisions. 

On April 28, 2006, EPA published 

two additional CAIR-related final rules 

that added the States of Delaware and 

New Jersey to the list of States subject 

to CAIR for PM2.5 and announced EPA’s 

final decisions on reconsideration of 

five issues, without making any 

substantive changes to the CAIR 

requirements. 

On October 19, 2007, EPA amended 

CAIR and the CAIR FIPs to clarify the 

definition of ‘‘cogeneration unit’’ and 

thus the applicability of the CAIR 

trading program to cogeneration units. 

EPA was sued by a number of parties 

on various aspects of CAIR, and on July 

11, 2008, the U.S. Court of Appeals for 

the District of Columbia Circuit issued 

its decision to vacate and remand both 

CAIR and the associated CAIR FIPs in 

their entirety. North Carolina v. EPA, 

531 F.3d 836 (DC Cir. Jul. 11, 2008). 

However, in response to EPA’s petition 

for rehearing, the Court issued an order 

remanding CAIR to EPA without 

vacating either CAIR or the CAIR FIPs. 

North Carolina v. EPA, 550 F.3d 1176 

(DC Cir. Dec. 23, 2008). The Court 

thereby left CAIR in place in order to 

‘‘temporarily preserve the 

environmental values covered by CAIR’’ 

until EPA replaces it with a rule 

consistent with the Court’s opinion. Id. 

at 1178. The Court directed EPA to 

‘‘remedy CAIR’s flaws’’ consistent with 

its July 11, 2008 opinion, but declined 

to impose a schedule on EPA for 

completing that action. Id. Therefore, 

CAIR and the CAIR FIP are currently in 

effect in Maryland. 

III. What Are the General Requirements 

of CAIR and the CAIR FIPs? 

CAIR establishes State-wide emission 

budgets for SO2 and NOX and is to be 

implemented in two phases. The first 

phase of NOX reductions starts in 2009 

and continues through 2014, while the 

first phase of SO2 reductions starts in 

2010 and continues through 2014. The 

second phase of reductions for both 

NOX and SO2 starts in 2015 and 

continues thereafter. CAIR requires 

States to implement the budgets by 

either: (1) Requiring EGUs to participate 

in the EPA-administered cap-and-trade 

programs; or (2) adopting other control 

measures of the State’s choosing and 

demonstrating that such control 

measures will result in compliance with 

the applicable State SO2 and NOX

budgets. 

The May 12, 2005 and April 28, 2006 

CAIR rules provide model rules that 

States must adopt (with certain limited 

changes, if desired) if they want to 

participate in the EPA-administered 

trading programs. With two exceptions, 

only States that choose to meet the 

requirements of CAIR through methods 

that exclusively regulate EGUs are 

allowed to participate in the EPAadministered trading programs. One 

exception is for States that adopt the 

opt-in provisions of the model rules to 

allow non-EGUs individually to opt into 

the EPA-administered trading programs. 

The other exception is for States that 

include all non-EGUs from their NOX

SIP Call trading programs in their CAIR 

NOX ozone season trading programs. 

IV. What Are the Types of CAIR SIP 

Submittals? 

States have the flexibility to choose 

the type of control measures they will 

use to meet the requirements of CAIR. 

EPA anticipates that most States will 

choose to meet the CAIR requirements 

by selecting an option that requires 

EGUs to participate in the EPAadministered CAIR cap-and-trade 

programs. For such States, EPA has 

provided two approaches for submitting 

and obtaining approval for CAIR SIP 

revisions. States may submit full SIP 

revisions that adopt the model CAIR 

cap-and-trade rules. If approved, these 

SIP revisions will fully replace the CAIR 

FIPs. Alternatively, States may submit 

abbreviated SIP revisions. These SIP 

revisions will not replace the CAIR FIPs; 

however, the CAIR FIPs provide that, 

when approved, the provisions in these 

abbreviated SIP revisions will be used 

instead of or in conjunction with, as 


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1The 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. 

appropriate, the corresponding 

provisions of the CAIR FIPs (e.g., the 

NOX allowance allocation 

methodology). 

A State submitting a full SIP revision 

may either adopt regulations that are 

substantively identical to the model 

rules or incorporate by reference the 

model rules. CAIR provides that States 

may only make limited changes to the 

model rules if the States want to 

participate in the EPA-administered 

trading programs. A full SIP revision 

may change the model rules only by 

altering their applicability and 

allowance allocation provisions to: 

1. Include all NOX SIP Call trading 

sources that are not EGUs under CAIR 

in the CAIR NOX ozone season trading 

program; 

2. Provide for State allocation of NOX

annual or ozone season allowances 

using a methodology chosen by the 

State; 

3. Provide for State allocation of NOX

annual allowances from the compliance 

supplement pool (CSP) using the State’s 

choice of allowed, alternative 

methodologies; or 

4. Allow units that are not otherwise 

CAIR units to opt individually into the 

CAIR SO2, NOX annual, or NOX ozone 

season trading programs under the optin provisions in the model rules. An 

approved CAIR full SIP revision 

addressing EGUs’ SO2, NOX annual, or 

NOX ozone season emissions will 

replace the CAIR FIP for that State for 

the respective EGU emissions. As 

discussed above, EPA approval in full, 

without any conditions, of a CAIR full 

SIP revision causes the CAIR FIPs to be 

automatically withdrawn. 

V. Analysis of Maryland’s CAIR SIP 

Submittal 

A. State Budgets for Allowance 

Allocations 

The CAIR NOX annual and ozone 

season budgets were developed from 

historical heat input data for EGUs. 

Using these data, EPA calculated annual 

and ozone season regional heat input 

values, which were multiplied by 0.15 

lb/mmBtu, for phase I, and 0.125 lb/ 

mmBtu, for phase II, to obtain regional 

NOX budgets for 2009–2014 and for 

2015 and thereafter, respectively. EPA 

derived the State NOX annual and ozone 

season budgets from the regional 

budgets using State heat input data 

adjusted by fuel factors. 

The CAIR State SO2 budgets were 

derived by discounting the tonnage of 

emissions authorized by annual 

allowance allocations under the Acid 

Rain Program under title IV of the CAA. 

Under CAIR, each allowance allocated 

in the Acid Rain Program for the years 

in phase 1 of CAIR (2010 through 2014) 

authorizes 0.5 ton of SO2 emissions in 

the CAIR trading program, and each 

Acid Rain Program allowance allocated 

for the years in phase 2 of CAIR (2015 

and thereafter) authorizes 0.35 ton of 

SO2 emissions in the CAIR trading 

program. 

In today’s action, EPA is proposing to 

approve a Maryland SIP revision that 

adopts by reference the budgets 

established for the State in CAIR. These 

budgets are 27,724 tons for NOX annual 

emissions from 2009 through 2014, and 

23,104 tons from 2015 and thereafter; 

12,834 tons for NOX ozone season 

emissions from 2009 through 2014, and 

10,695 tons from 2015 and thereafter; 

and 70,697 tons for SO2 annual 

emissions from 2009 through 2014, and 

49,488 tons from 2015 and thereafter. 

Maryland’s SIP revisions set these 

budgets as the total amounts of 

allowances available for allocation for 

each year under the EPA-administered 

cap-and-trade programs. 

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.1

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, DC 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. 

B. CAIR Cap-and-Trade Programs 

The CAIR NOX annual and ozoneseason model trading rules both largely 

mirror the structure of the NOX SIP Call 

model trading rule in 40 CFR Part 96, 

subparts A through I. While the 

provisions of the NOX annual and 

ozone-season model rules are similar, 

there are some differences. For example, 

the NOX annual model rule (but not the 

NOX ozone season model rule) provides 

for a CSP, which is discussed below and 

under which allowances may be 

awarded for early reductions of NOX

annual emissions. As a further example, 

the NOX ozone season model rule 

reflects the fact that the CAIR NOX

ozone season trading program replaces 

the NOX SIP Call trading program after 

the 2008 ozone season and is 

coordinated with the NOX SIP Call 

program. The NOX ozone season model 

rule provides incentives for early 

emissions reductions by allowing 

banked, pre-2009 NOX SIP Call 

allowances to be used for compliance in 

the CAIR NOX ozone-season trading 

program. In addition, States have the 

option of continuing to meet their NOX

SIP Call requirement by participating in 

the CAIR NOX ozone season trading 

program and including all their NOX SIP 

Call trading sources in that program. 

The provisions of the CAIR SO2

model rule are also similar to the 

provisions of the NOX annual and ozone 

season model rules. However, the SO2

model rule is coordinated with the 

ongoing Acid Rain SO2 cap-and-trade 

program under CAA title IV. The SO2

model rule uses the title IV allowances 

for compliance, with each allowance 

allocated for 2010–2014 authorizing 

only 0.50 ton of emissions and each 

allowance allocated for 2015 and 

thereafter authorizing only 0.35 ton of 

emissions. Banked title IV allowances 

allocated for years before 2010 can be 

used at any time in the CAIR SO2 capand-trade program, with each such 

allowance authorizing one ton of 

emissions. Title IV allowances are to be 

freely transferable among sources 

covered by the Acid Rain Program and 

sources covered by the CAIR SO2 capand-trade program. 

EPA also used the CAIR model 

trading rules as the basis for the trading 

programs in the CAIR FIPs. The CAIR 

FIP trading rules are virtually identical 

to the CAIR model trading rules, with 

changes made to account for Federal 

rather than State implementation. The 

CAIR model SO2, NOX annual, and NOX

ozone season trading rules and the 


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2Maryland anticipated that its CAIR SIP would 

be in effect in time to issue allocations from its set 

aside pool starting in 2009. Because the CAIR FIP 

is still in effect in Maryland, allocations from the 

new unit set aside have been allocated under the 

FIP for 2009. As a consequence, EPA is not 

approving the allowance allocations for new units, 

renewable energy projects and consumers of electric 

energy contained in Maryland’s CAIR SIP for 2009. 

Those allocations will be issued in accordance with 

Maryland’s CAIR SIP starting in 2010, contingent 

upon finalization of this proposed action. 

respective CAIR FIP trading rules are 

designed to work together as integrated 

SO2, NOX annual, and NOX ozone 

season trading programs. 

In the SIP revisions, Maryland choose 

to implement its CAIR budgets by 

requiring EGUs to participate in EPAadministered cap-and-trade programs 

for SO2, NOX annual, and NOX ozone 

season emissions. Maryland has 

adopted a full CAIR SIP revision that 

incorporates by reference the CAIR 

model cap and trade rules for SO2, NOX

annual, and NOX ozone season 

emissions, with modifications as 

allowed under the flexibilities of the 

program. 

C. Applicability Provisions for NonElectric Generating Units (Non-EGU) 

Sources 

In general, the CAIR model trading 

rules apply to any stationary, fossil-fuelfired boiler or stationary, fossil-fuelfired combustion turbine serving at any 

time, since the later of November 15, 

1990 or the start-up of the unit’s 

combustion chamber, a generator with 

nameplate capacity of more than 25 

MWe producing electricity for sale. 

Maryland’s CAIR rules incorporate by 

reference the CAIR model trading rule 

applicability described in 40 CFR 

96.104, 96.204 and 96.304. 

States have the option of bringing in, 

for the CAIR NOX ozone season program 

only, those units in the State’s NOX SIP 

Call trading program that are not EGUs 

as defined under CAIR. EPA advises 

States exercising this option to add the 

applicability provisions in the State’s 

NOX SIP Call trading rule for non-EGUs 

to the applicability provisions in 40 CFR 

96.304 in order to include in the CAIR 

NOX ozone season trading program all 

units required to be in the State’s NOX

SIP Call trading program that are not 

already included under 40 CFR 96.304. 

Under this option, the CAIR NOX ozone 

season program must cover all large 

industrial boilers and combustion 

turbines, as well as any small EGUs (i.e. 

units serving a generator with a 

nameplate capacity of 25 MWe or less) 

that the State currently requires to be in 

the NOX SIP Call trading program. 

Maryland has chosen not to expand 

the applicability provisions of the CAIR 

NOX ozone season trading program to 

include all non-EGUs in the State’s NOX

SIP Call trading program. Therefore, 

Maryland must, in a separate 

submission, demonstrate that it is 

meeting 40 CFR 51.121(f)(2) and (h)(4), 

which sets forth requirements for 

control measures or other regulatory 

requirement(s) to demonstrate that the 

State will comply with its NOX budget 

as established for the 2007 ozone 

season. Continuous emissions 

monitoring (CEMS) in accordance with 

40 CFR Part 75 is required. 

D. NOX Allowance Allocations 

Under the NOX allowance allocation 

methodology in the CAIR model trading 

rules and in the CAIR FIP, NOX annual 

and ozone season allowances are 

allocated to units that have operated for 

five years, based on heat input data from 

a three-year period that are adjusted for 

fuel type by using fuel factors of 1.0 for 

coal, 0.6 for oil, and 0.4 for other fuels. 

The CAIR model trading rules and the 

CAIR FIP also provide a new unit setaside from which units without five 

years of operation are allocated 

allowances based on the units’ prior 

year emissions. 

States may establish in their SIP 

submissions a different NOX allowance 

allocation methodology that will be 

used to allocate allowances to sources in 

the States if certain requirements are 

met concerning the timing of 

submission of units’ allocations to the 

Administrator for recordation and the 

total amount of allowances allocated for 

each control period. In adopting 

alternative NOX allowance allocation 

methodologies, States have flexibility 

with regard to: 

1. The cost to recipients of the 

allowances, which may be distributed 

for free or auctioned; 

2. The frequency of allocations; 

3. The basis for allocating allowances, 

which may be distributed, for example, 

based on historical heat input or electric 

and thermal output; and 

4. The use of allowance set-asides 

and, if used, their size. 

Maryland has chosen to incorporate 

by reference the allowance allocation 

methodology of the model rule for both 

the NOX annual and NOX ozone season 

trading programs, with the exception of 

the provisions pertaining to the 

distribution of allowances from the set 

aside pool under 96.142(d). Maryland 

has established a set-aside of five 

percent of the NOX ozone season 

allowance budget for each control 

period during 2009 through 2014, and a 

set aside of five percent of the NOX

Annual allowance budget for each 

control period 2009 through 2014.2 The 

allowances from these set-aside pools 

will be distributed to new affected units, 

with any remaining allowances to be 

distributed to renewable energy projects 

and consumers of electric power in the 

State. At the end of each control period, 

20 percent of unused allowances from 

the set asides will be transferred to the 

State’s retirement account in the CAIR 

allowance tracking system, and 80 

percent of unused allowances will be 

returned to the affected trading sources 

listed in COMAR 26.11.28.08. 

E. Allocation of NOX Allowances From 

Compliance Supplement Pool 

The CAIR establishes a CSP to 

provide an incentive for early 

reductions in NOX annual emissions. 

The CSP consists of 200,000 CAIR NOX

annual allowances of vintage 2009 for 

the entire CAIR region, and a State’s 

share of the CSP is based upon the 

projected magnitude of the emission 

reductions required by CAIR in that 

State. States may distribute CSP 

allowances, one allowance for each ton 

of early reduction, to sources that make 

NOX reductions during 2007 or 2008 

beyond what is required by any 

applicable State or Federal emission 

limitation. States also may distribute 

CSP allowances based upon a 

demonstration of need for an extension 

of the 2009 deadline for implementing 

emission controls. The CSP for the State 

of Maryland is comprised of 4,670 

allowances. 

The CAIR annual NOX model trading 

rule establishes specific methodologies 

for allocations of CSP allowances. States 

may choose an allowed, alternative CSP 

allocation methodology to be used to 

allocate CSP allowances to sources in 

the States. 

The deadline for requesting the CSP 

allowances was May 1, 2009, therefore, 

the CSP allowances will be distributed 

under the provisions of the CAIR FIP for 

the sources in the State of Maryland. 

EPA is, therefore, not approving the CSP 

allocation contained in Maryland’s 

CAIR SIP. 

F. Individual Opt-in Units 

The opt-in provisions of the CAIR SIP 

model trading rules allow certain nonEGUs (i.e., boilers, combustion turbines, 

and other stationary fossil-fuel-fired 

devices) that do not meet the 

applicability criteria for a CAIR trading 

program to participate voluntarily in 

(i.e., opt into) the CAIR trading program. 

A non-EGU may opt into one or more 

of the CAIR trading programs. In order 

to qualify to opt into a CAIR trading 

program, a unit must vent all emissions 

through a stack and be able to meet 

monitoring, recordkeeping, and 


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42042 Federal Register / Vol. 74, No. 160 / Thursday, August 20, 2009 / Proposed Rules 

recording requirements of 40 CFR part 

75. The owners and operators seeking to 

opt a unit into a CAIR trading program 

must apply for a CAIR opt-in permit. If 

the unit is issued a CAIR opt-in permit, 

the unit becomes a CAIR unit, is 

allocated allowances, and must meet the 

same allowance-holding and emissions 

monitoring and reporting requirements 

as other units subject to the CAIR 

trading program. The opt-in provisions 

provide for two methodologies for 

allocating allowances for opt-in units, 

one methodology that applies to opt-in 

units in general and a second 

methodology that allocates allowances 

only to opt-in units that the owners and 

operators intend to repower before 

January 1, 2015. 

States have several options 

concerning the opt-in provisions. States 

may adopt the CAIR opt-in provisions 

entirely or may adopt them but exclude 

one of the methodologies for allocating 

allowances. States may also decline to 

adopt the opt-in provisions at all. 

Maryland has chosen to incorporate by 

reference the provisions of the model 

rule pertaining to opt-ins for the NOX

annual, NOX ozone season, and SO2

annual trading program. 

G. Clarification of Other Provisions in 

Maryland’s CAIR Rule 

1. 2009 CAIR NOX Annual and CAIR 

NOX Ozone Season Allowances 

The tables in COMAR 26.11.28.08 

specify allowances for 2009–2014. 

Maryland anticipated that its CAIR SIP 

would be in effect in time to issue the 

allowances for this allocation period. 

However, Maryland sources are 

currently subject to the FIP, therefore 

allocations for 2009 have been 

distributed under the FIP provisions. As 

a consequence, EPA is not approving 

Maryland’s 2009 CAIR NOX Annual and 

CAIR NOX Ozone Season allowance 

allocation contained in the Maryland 

CAIR SIP. The tables in COMAR 

26.11.28.08 will be used starting in 

2010, contingent on finalization of this 

proposed action. 

2. Deadline for Requests for Allowances 

From the Set Aside Pool 

COMAR 26.11.28.04A(1) sets ‘‘March 

15 of the year following the year the 

unit began commercial operation 

* * *’’ as the date by which the owner 

or operator of a ‘‘new affected trading 

unit’’ may request allowances from the 

set aside pool. Because this schedule is 

different from the schedule in 40 CFR 

96.142(c)(2) and 40 CFR 96.342(c)(2) 

which are incorporated by reference, 

EPA clarifies that the schedule 

established in COMAR 26.11.28.04A(1) 

applies to sources in Maryland. 

3. Schedule for Recording Set Aside 

Pool Allowances 

COMAR 26.11.28.05G establishes a 

July 1 deadline for EPA to transfer NOX

allowances for renewable energy 

projects to a general account for the 

owner or operator of a renewable energy 

project. Although not addressed in this 

provision, the owner or operator of the 

renewable energy project is responsible 

for establishing the general account in 

accordance with 40 CFR 96.151 and 

96.152, or 96.351 and 96.352. Also, 

these accounts will need to be 

established sufficiently in advance of 

the July 1 deadline to ensure timely 

allowance transfers to the appropriate 

general accounts. EPA notes that the 

allocation information from the State 

must be received approximately two 

weeks before the deadline to give the 

Agency time to process the information 

and meet the July 1 deadline for 

recording the allowances. 

4. Interaction of Maryland’s CAIR Rule 

With COMAR 26.11.27 

COMAR 26.11.27, entitled ‘‘Emission 

Limitations for Power Plants,’’ was 

adopted by Maryland to implement the 

emission reductions required by the 

State’s Healthy Air Act (Annotated Code 

of Maryland Environment Title 2 

Ambient Air Quality Control Subtitle 10 

Health Air Act Sections 2–1001—2– 

1005), and sets emissions caps for 

fifteen of the largest coal-fired power 

plants in the State. All of these sources 

are also subject to CAIR. 

COMAR 26.11.27.03B(7)(a)(iii) 

requires that, if a unit exceeds its Ozone 

Season NOX tonnage limitation as a 

result of certain specified actions and 

alerts invoked by the independent 

system operator PJM Interconnection, 

LLC (PJM), the unit is not in violation 

if, among other things, the owner or 

operator surrenders one ‘‘ozone season 

NOX allowances’’ to the State’s 

surrender account for every ton of NOX

emitted in excess of the cap. EPA 

interprets the reference to ‘‘ozone 

season NOX allowance’’ to mean CAIR 

NOX ozone season allowances because 

the NOX Budget Trading Program was 

discontinued in 2008, and all banked 

ozone season NOX allowances from that 

program have been converted to CAIR 

NOX ozone season allowances. 

An owner or operator is required to 

surrender CAIR NOX ozone season 

allowances under this provision only if 

PJM invokes certain specified actions 

and alerts and the unit’s emissions 

increase as a result. Since 1999, PJM has 

invoked these actions and alerts 

relatively few times (generally a few 

times a year but up to 22 times in one 

year) and only for relatively short 

periods of time (generally about 24 

hours and only once slightly exceeding 

48 hours). However, the majority of 

these actions and alerts involve load 

reductions and so are not likely to result 

in increased emissions that would force 

a facility to exceed its Ozone Season 

NOX tonnage limitation. Therefore, EPA 

believes that the potential for CAIR 

allowances to be used outside of the 

CAIR trading programs is very limited 

and will not interfere to any significant 

extent with the CAIR trading programs. 

VI. Proposed Action 

EPA is proposing to approve, as 

interpreted and clarified herein, 

Maryland’s full CAIR SIP revisions 

submitted on October 24, 2007, and 

June 30, 2008, except for the 2009 NOX

ozone season and NOX annual 

allocations, the 2009 set aside 

allocations and the CSP allocations. 

Under the SIP revisions, Maryland is 

choosing to participate in the EPAadministered CAIR cap-and-trade 

programs for SO2, NOX annual, and NOX

ozone season emissions. The SIP 

revisions, as interpreted and clarified 

herein, meets the applicable 

requirements of CAIR, which are set 

forth 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. Upon 

final approval, the CAIR FIP for 

Maryland will be automatically 

withdrawn. 

VII. Statutory and Executive Order 

Reviews 

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.); 


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Federal Register / Vol. 74, No. 160 / Thursday, August 20, 2009 / Proposed Rules 42043 

• 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 proposed approval of 

Maryland’s CAIR rule, with certain 

exceptions, 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. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Nitrogen dioxide, 

Ozone, Particulate matter, Reporting 

and recordkeeping requirements, Sulfur 

oxides. 

Dated: August 10, 2009. 

William C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. E9–20047 Filed 8–19–09; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[DA 09–1805; MB Docket No. 09–147; RM– 

11554] 

Television Broadcasting Services; New 

Orleans, LA 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: The Commission has before it 

a petition for rulemaking filed by 

Louisiana Media Company, LLC 

(‘‘Louisiana Media’’), the licensee of 

station WVUE–DT, channel 8, New 

Orleans, Louisiana. Louisiana Media 

requests the substitution of its pretransition digital channel 29 for its posttransition digital channel 8 at New 

Orleans. 

DATES: Comments must be filed on or 

before September 4, 2009, and reply 

comments on or before September 14, 

2009. 

ADDRESSES: Federal Communications 

Commission, Office of the Secretary, 

445 12th Street, SW., Washington, DC 

20554. In addition to filing comments 

with the FCC, interested parties should 

serve counsel for petitioner as follows: 

Mace J. Rosenstein, Esq., Covington & 

Burling LLP, 1201 Pennsylvania 

Avenue, NW., Washington, DC 20004. 

FOR FURTHER INFORMATION CONTACT: 

Joyce L. Bernstein, 

joyce.bernstein@fcc.gov, Media Bureau, 

(202) 418–1600. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Notice of 

Proposed Rule Making, MB Docket No. 

09–147, adopted August 12, 2009, and 

released August 14, 2009. The full text 

of this document is available for public 

inspection and copying during normal 

business hours in the FCC’s Reference 

Information Center at Portals II, CY– 

A257, 445 12th Street, SW., 

Washington, DC 20554. This document 

will also be available via ECFS (http:// 

www.fcc.gov/cgb/ecfs/). (Documents 

will be available electronically in ASCII, 

Word 97, and/or Adobe Acrobat.) This 

document may be purchased from the 

Commission’s duplicating contractor, 

Best Copy and Printing, Inc., 445 12th 

Street, SW., Room CY–B402, 

Washington, DC 20554, telephone 

1–800–478–3160 or via e-mail 

http://www.BCPIWEB.com. To request 

this document in accessible formats 

(computer diskettes, large print, audio 

recording, and Braille), send an e-mail 

to fcc504@fcc.gov or call the 

Commission’s Consumer and 

Governmental Affairs Bureau at (202) 

418–0530 (voice), (202) 418–0432 

(TTY). This document does not contain 

proposed information collection 

requirements subject to the Paperwork 

Reduction Act of 1995, Public Law 104– 

13. In addition, therefore, it does not 

contain any proposed information 

collection burden ‘‘for small business 

concerns with fewer than 25 

employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). 

Provisions of the Regulatory 

Flexibility Act of 1980 do not apply to 

this proceeding. 

Members of the public should note 

that from the time a Notice of Proposed 

Rule Making is issued until the matter 

is no longer subject to Commission 

consideration or court review, all ex 

parte contacts are prohibited in 

Commission proceedings, such as this 

one, which involve channel allotments. 

See 47 CFR 1.1204(b) for rules 

governing permissible ex parte contacts. 

For information regarding proper 

filing procedures for comments, see 47 

CFR 1.415 and 1.420. 

List of Subjects in 47 CFR Part 73 

Television, Television broadcasting. 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

part 73 as follows: 

PART 73—RADIO BROADCAST 

SERVICES 

1. The authority citation for part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 303, 334, 336. 

§ 73.622 [Amended] 

2. Section 73.622(i), the PostTransition Table of DTV Allotments 

under Louisiana, is amended by adding 

DTV channel 29 and removing DTV 

channel 8 at New Orleans. 

Federal Communications Commission. 

Clay C. Pendarvis, 

Associate Chief, Video Division, Media 

Bureau. 

[FR Doc. E9–20029 Filed 8–19–09; 8:45 am] 

BILLING CODE 6712–01–P 


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