[Federal Register Volume 62, Number 37 (Tuesday, February 25, 1997)]
[Rules and Regulations]
[Pages 8380-8383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-4524]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MD040-3010a and MD048-3011a; FRL-5688-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; Control of Volatile Organic Compound Emissions From Open 
Fires, ``Once-in, Always-in,'' and Definition for the Term ``Annual''

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving State Implementation Plan (SIP) revisions 
submitted by the State of Maryland on July 12, 1995 and July 17, 1995. 
These revisions establish a definition for the term ``annual,'' expand 
Maryland's once-in, always-in provisions, and require an open burning 
ban in Maryland's serious and severe ozone nonattainment areas during 
the summer months. The intended effect of this action is to approve 
these provisions into the Maryland SIP, in accordance with the SIP 
submittal and revision provisions of the Act.

DATES: This final rule is effective April 28, 1997 unless within March 
27, 1997, adverse or critical comments are received. If the effective 
date is delayed, timely notice will be published in the Federal 
Register.

ADDRESSES: Comments may be mailed to David L. Arnold, Chief, Ozone/CO 
and Mobile Sources Section, Mailcode 3AT21, U.S. Environmental 
Protection Agency, Region III, 841 Chestnut Building, Philadelphia, 
Pennsylvania 19107. Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the 
Air, Radiation, and Toxics Division, U.S. Environmental Protection 
Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 
19107 and the Maryland Department of the Environment, 2500 Broening 
Highway, Baltimore Maryland 21224.

FOR FURTHER INFORMATION CONTACT: Maria A. Pino, (215) 566-2181, at the

[[Page 8381]]

EPA Region III office address listed above, or via e-mail at 
<a href="/cdn-cgi/l/email-protection#3f4f56515011525e4d565e7f5a4f5e525e5653115a4f5e11585049"><span class="__cf_email__" data-cfemail="9aeaf3f4f5b4f7fbe8f3fbdaffeafbf7fbf3f6b4ffeafbb4fdf5ec">[email protected]</span></a>. While information may be requested via e-
mail, comments must be submitted in writing to the above Region III 
address.

SUPPLEMENTARY INFORMATION: On July 12, 1995, the Maryland Department of 
the Environment (MDE) submitted amendments to its open fires regulation 
to EPA as a State Implementation Plan (SIP) revision. This regulation 
controls emissions of volatile organic compounds (VOCs) through a 
seasonal ban on open burning in Maryland's serious and severe ozone 
nonattainment areas. MDE submitted this SIP revision request pursuant 
to the rate-of-progress (ROP) requirements of section 182 of the Clean 
Air Act (the Act).
    On July 17, 1995, MDE submitted amendments to its ``once-in, 
always-in'' provisions to EPA as a SIP revision. These revisions expand 
the applicability of Maryland's once-in, always-in provisions to 
include VOC regulations triggered by applicability thresholds based on 
a source's actual emissions. Also on July 17, 1995, MDE submitted a 
definition for the term ``annual.'' This revision clarifies 
applicability provisions for many Maryland VOC emission control 
requirement provisions.

Summary of SIP Revision

State Submittal: Open Fires, COMAR 26.11.07

    Maryland has amended COMAR 26.11.07 to institute a ban on open 
burning during the peak ozone season in Maryland's severe and serious 
ozone nonattainment areas. Maryland considers the months of June, July, 
and August the peak ozone, because that is when ambient levels of ozone 
in Maryland are usually the highest. The areas subject to this ban are 
the Baltimore severe ozone nonattainment area (Baltimore City and Anne 
Arundel, Baltimore, Carroll, Harford, and Howard Counties), the 
Maryland portion of the Philadelphia severe ozone nonattainment area 
(Cecil County), and the Maryland portion of the Washington, DC serious 
ozone nonattainment area (Calvert, Charles, Frederick, Montgomery, and 
Prince George's Counties). These revisions were adopted on May 1, 1995, 
and effective on May 22, 1995.
    The following open fires are not prohibited, as long as all 
reasonable means are used to minimize smoke:
    (1) For cooking of food on noncommercial property (cook outs);
    (2) For recreational purposes (camp fires);
    (3) For prevention of fire hazards that cannot be abated by any 
other means;
    (4) For the instruction of fire fighters or the testing of fire 
fighter training systems fueled by propane or natural gas;
    (5) For protection of health & safety when disposal of hazardous 
waste is not possible by any other means;
    (6) For burning pest infested crops or agricultural burning for 
animal disease control;
    (7) For good forest resource management practices;
    (8) For the burning of excessive lodging for the purpose of re-
cropping; and
    (9) For testing fire fighting training systems.
    This ban is in effect during the ``peak ozone season''. During the 
remainder of the year (September 1-May 31) Maryland's existing open 
fire regulations apply. Current regulations require a permit to be 
obtained before open burning can take place.
    The program will be enforced through a coordinated effort between 
Maryland Department of the Environment, local agencies and public 
officials. There will also be a coordinated public awareness effort to 
educate the public about the alternatives to open burning. The ban will 
result in emission reductions of 13.28 tons per day (tpd) VOC. The ban 
will also result in significant emission reductions of carbon monoxide 
(CO), oxides of nitrogen (NO<INF>x), and toxics (carcinogenic 
polycyclic materials).
    In addition, Maryland has made the following administrative 
amendments to COMAR 26.11.07.
    (1) All references to Ringlemann Smoke Chart have been replaced by 
references to opacity throughout this regulation.
    (2) All references to ``Areas I-VI'' have been replaced by county 
names throughout this regulation.
    (3) All references to ``I.I.A waste type 0 and 1'' have been placed 
with references to all ``ordinary household trash'' throughout this 
regulation.

EPA Evaluation: Open Fires, COMAR 26.11.07

    These revisions, which prohibit all but certain specific open 
burning activities in Maryland's serious and severe ozone nonattainment 
areas in the peak ozone season (June, July & August), will result in 
significant enforceable VOC emission reductions. These reductions are 
needed for Maryland's 15% plans.

State Submittal: Once-in, Always in, COMAR 26.11.19.02A(3)-(5)

    These SIP revisions add a once-in, always-in provision for VOC 
regulations triggered by applicability thresholds based on a source's 
actual emissions (as opposed to potential emissions). These revisions 
were adopted on April 7, 1995, and effective on May 8, 1995, and are 
applicable statewide.
    The once-in, always-in provision that is currently in Maryland's 
SIP states that if a source is subject to the requirements of COMAR 
26.11.19 (Maryland's category specific VOC regulations) because its 
potential emissions exceed an applicability threshold, the source will 
continue to be subject to the requirements, regardless of whether 
future emissions are below the applicability threshold. Maryland has 
expanded this provision to include exceedances of actual emissions 
thresholds. Actual emissions since January 1, 1990 will be considered 
in determining applicability.

EPA Evaluation: Once-in, Always in, COMAR 26.11.19.02A(3)-(5)

    This revision will ensure that any new VOC requirements that have 
applicability thresholds based on actual emissions are enforceable for 
all sources that have exceeded the applicability threshold from January 
1, 1990 into the future.

State Submittal: Definition of ``Annual'', COMAR 26.11.19.01B(1-1)

    This SIP revision adds a definition for the term ``annual.'' This 
revision was adopted on April 7, 1995, and effective on May 8, 1995, 
and is applicable statewide.
    Maryland has added a definition for the term ``annual.'' COMAR 
26.11.19.01B(1-1) defines the term ``annual'' as meaning a calendar 
year, unless otherwise specified.

EPA Evaluation: Definition of the Term ``Annual'', COMAR 26.11.19.01B

    Many of Maryland's new VOC control measures, both Reasonably 
Available Control Technology (RACT) regulations and other VOC control 
measures needed for Maryland's 15% plans and other ROP requirements, 
use the term ``annual'' in provisions for determining a facilities 
applicability. This revision will clarify any applicability provisions 
in COMAR 26.11.19 that use the term annual.
    EPA is approving these SIP revisions without prior proposal because 
the Agency views this as a noncontroversial amendment and anticipates 
no adverse comments. However, in a separate document in this Federal 
Register publication, EPA is proposing to approve the SIP revision 
should adverse or critical comments be filed. This action will be 
effective April 28, 1997

[[Page 8382]]

unless, by March 27, 1997, adverse or critical comments are received.
    If EPA receives such comments, this action will be withdrawn before 
the effective date by publishing a subsequent document that will 
withdraw the final action. All public comments received will then be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. EPA will not institute a second comment period on this 
action. Any parties interested in commenting on this action should do 
so at this time. If no such comments are received, the public is 
advised that this action will be effective on April 28, 1997.

Final Action

    EPA is approving amendments to COMAR 26.11.07 as revisions to 
Maryland's ozone SIP. These revisions, which institute a ban on open 
burning during the peak ozone season in Maryland's severe and serious 
ozone nonattainment areas, were submitted by Maryland on July 12, 1995. 
EPA is also approving amendments to COMAR 26.11.19.02A(3)-(5) and COMAR 
26.11.19.01B(1-1) as revisions to Maryland's ozone SIP. These 
revisions, which add a definition for the term ``annual'' and add a 
``once-in, always-in'' provision for VOC regulations triggered by 
applicability thresholds based on a source's actual emissions, were 
submitted by Maryland on July 17, 1995.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the state implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

Administrative Requirements

A. Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, part D of the 
Clean Air Act do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP approval does not impose any new requirements, the Regional 
Administrator certifies that it does not have a significant impact on 
any small entities affected. Moreover, due to the nature of the 
Federal-State relationship under the CAA, preparation of a flexibility 
analysis would constitute Federal inquiry into the economic 
reasonableness of state action. The Clean Air Act forbids EPA to base 
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. 
EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

C. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
private sector, of $100 million or more. Under section 205, EPA must 
select the most cost-effective and least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

E. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action, pertaining to revisions to COMAR 
26.11.07, COMAR 26.11.19.02A(3)-(5), and COMAR 26.11.19.01B(1-1) of 
Maryland's ozone SIP, must be filed in the United States Court of 
Appeals for the appropriate circuit by April 28, 1997. Filing a 
petition for reconsideration by the Regional Administrator of this 
final rule does not affect the finality of this rule 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 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, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Ozone, 
Reporting and recordkeeping requirements.

    Dated: January 31, 1997.
W. Michael McCabe,
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. 7401-7671q.

Subpart V--Maryland

    2. Section 52.1070 is amended by adding paragraphs (c) (120) and 
(121) to read as follows:


Sec. 52.1070  Identification of plan.

* * * * *
    (c) * * *
    (120) Revisions to the Maryland State Implementation Plan submitted 
on July 12, 1995 by the Maryland Department of the Environment:

[[Page 8383]]

    (i) Incorporation by reference.
    (A) Letter of July 12, 1995 from the Maryland Department of the 
Environment transmitting additions, deletions, and revisions to 
Maryland's State Implementation Plan, pertaining to volatile organic 
compound regulations in Maryland's air quality regulations, Code of 
Maryland Administrative Regulations (COMAR) 26.11.
    (B) The following amendments to COMAR 26.11.07, pertaining to open 
fires, adopted by the Secretary of the Environment on May 1, 1995, 
effective May 22, 1995:
    (1) the deletion of sections 26.11.07.01 A and B, definitions for 
the terms ``hazardous material'' and ``I.I.A. standards.''
    (2) addition of new section 26.11.07.01B, ``Terms Defined.''
    (3) addition of new sections 26.11.07.01B(1) and (2), definitions 
of the terms ``excessive lodging'' and ``forest resource management 
practices.''
    (4) renumbering of old sections 26.11.07.01C & D, now new sections 
26.11.07.01B(3) & (4).
    (5) amendments to section 26.11.07.02, pertaining to general 
provisions.
    (6) amendments to sections 26.11.07.03A, B, and B(1), pertaining to 
open fires authorized by control officers.
    (7) addition of new section 26.11.07.03C, ``Prohibition on Open 
Burning.''
    (8) amendments to section 26.11.07.04, pertaining to open fires 
authorized by public officers, including the addition of new sections 
(4)--(7).
    (9) amendments to section 26.11.07.05, pertaining to open fires 
allowed without authorization.
    (ii) Additional material.
    (A) Remainder of July 12, 1995 Maryland State submittal pertaining 
to COMAR 26.11.19.07.
    (121) Revisions to the Maryland State Implementation Plan submitted 
on July 17, 1995 by the Maryland Department of the Environment:
    (i) Incorporation by reference.
    (A) Letter of July 12, 1995 from the Maryland Department of the 
Environment transmitting additions, deletions, and revisions to 
Maryland's State Implementation Plan, pertaining to volatile organic 
compound regulations in Maryland's air quality regulations, Code of 
Maryland Administrative Regulations (COMAR) 26.11.
    (B) Amendments to COMAR 26.11.19.02A, pertaining to once-in, 
always-in applicability provisions, consisting of revisions to COMAR 
26.11.19.02A(3), and the addition of new COMAR 26.11.19.02A (4) and 
(5), adopted by the Secretary of the Environment on April 7, 1995, and 
effective on May 8, 1995.
    (C) Amendments to COMAR 26.11.19.01B, consisting of the addition of 
new COMAR 26.11.19.01B(1-1), the definition for the term ``annual,'' 
adopted by the Secretary of the Environment on April 7, 1995, effective 
on May 8, 1995.
    (ii) Additional material.
    (A) Remainder of July 17, 1995 Maryland State submittal pertaining 
to COMAR 26.11.19.02A(3)-(5) and COMAR 26.11.19.01B(1-1).

[FR Doc. 97-4524 Filed 2-24-97; 8:45 am]
BILLING CODE 6560-50-P


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