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Approval and Promulgation of Air Quality Implementation Plans; Maryland; Preconstruction Permitting Requirements for Electric Generating Stations in Maryland
Feb 10, 2012 (Environmental Protection Agency Documents and Publications/ContentWorks via COMTEX) --
SUMMARY: EPA is granting limited approval of a State Implementation Plan (SIP) revision submitted by the Maryland Department of the Environment (MDE). This SIP revision revises and supplements the Maryland SIP by adding the preconstruction permitting requirements for electric generating stations that are required to receive a Certificate of Public Convenience and Necessity (CPCN) from the Maryland Public Service Commission (PSC) before commencing construction or modification. The SIP revision also requires electric generating stations to obtain a preconstruction permit from MDE when a CPCN is not required under the PSC regulations and statutes. EPA is granting limited approval of these revisions to Maryland's preconstruction program for electric generating stations in accordance with the requirements of the Clean Air Act (CAA).
DATES: Effective Date: This final rule is effective on March 12, 2012.
ADDRESSES: EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2011-0623. All documents in the docket are listed in the 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 www.regulations.gov or in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submission are available at the Maryland Department of the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230.
FOR FURTHER INFORMATION CONTACT: David Talley, (215) 814-2117, or by email at talley.david@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, whenever "we," "us," or "our" is used, we mean EPA. The PSC is an agent of the State of Maryland and is an independent unit in the Executive Branch of the government of the State of Maryland. The PSC regulates public utilities including electric generating stations owned by electric companies doing business in Maryland and is empowered by the State of Maryland to issue CPCNs for the construction and modification of electric generating stations. On August 4, 2011 (76 FR 47090), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland. The NPR proposed approval of changes to the Code of Maryland Administrative Regulations (COMAR), specifically the MDE regulations at COMAR 26.11.02.09 and 26.11.02.10. The NPR also proposed to approve into the Maryland SIP for first time the following: (1) Maryland statutory provisions at Md. Code Ann., Public Utilities Cos. sections 7-205 (2006), 7-207 (2007), 7-207.1 (2007) and 7-208 (2001); and (2) PSC regulations at COMAR 20.79.01.01; 20.79.01.02; 20.79.01.06; 20.79.01.07; 20.79.02.01; 20.79.02.02; 20.79.02.03; 20.79.03.01; and 20.79.03.02. The formal SIP revision (#11-01) was submitted by MDE on May 13, 2011. EPA initially proposed full approval of the submission.
However, in response to comments received on that proposal, a portion of the submission has been withdrawn by MDE. On December 20, 2011, MDE withdrew COMAR 20.79.01.07 (regarding the PSC's waiver authority for CPCNs) from its Maryland SIP revision submission. EPA is now granting limited approval of the remainder of the MDE SIP submission for electric generating stations which includes COMAR 26.11.02.09 and 26.11.02.10, applicable parts of sections 7-205, 7-207, 7-207.1 and 7-208 of the Md. Code Ann., and applicable parts of COMAR 20.79.01.01; 20.79.01.02; 20.79.01.06; 20.79.02.01; 20.79.02.02; 20.79.02.03; 20.79.03.01; and 20.79.03.02. See Sections III, IV and V below for more detail.
In our August 4, 2011 notice of proposed rulemaking, EPA proposed to include a July 15, 2011 letter from the Secretary of MDE in the Maryland SIP. Because MDE's July 15, 2011 letter addressed COMAR 20.79.01.07 which MDE has subsequently withdrawn from our consideration, EPA is not including the July 15, 2011 Letter in our limited approval of the May 13, 2011 Maryland SIP submission (as amended on December 20, 2011).
II. Summary of SIP Revision
Under the CAA, major stationary sources of air pollution are required to obtain a permit to construct prior to commencing construction or modification activities. The Maryland statutory provisions at sections 7-205, 7-207, 7-207.1, and 7-208 of the Md. Code Ann. and the PSC's regulations identified above require electric generating stations in Maryland to obtain a CPCN from the PSC prior to construction or modification activities which would require a permit under the CAA. The CPCNs serve as the mechanism for the State to implement Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR) requirements for electric generating stations in Maryland. EPA is limitedly approving Maryland's SIP revision request to add the statutory and regulatory requirements that require electric generating stations to obtain a CPCN prior to construction or modification. These requirements were not previously in the Maryland SIP; therefore, our limited approval corrects deficiencies in the Maryland SIP and strengthens the SIP.
Previously, the Maryland SIP at COMAR 26.11.02.09 and 26.11.02.10 exempted electric generating stations constructed or modified by electric generating companies from MDE's permitting regulations. However, the State of Maryland has since modified Md. Code Ann., Environment Section 2-402(3) and COMAR 26.11.02.09 and 26.11.02.10 so that electric generating stations that are not required to obtain CPCNs from the PSC remain subject to MDE's preconstruction permitting requirements. Therefore, the SIP regulations were inconsistent with Maryland's present statutory and regulatory provisions in that they do not preserve MDE's permitting authority for electric generating stations that are not required otherwise to obtain a CPCN. MDE's May 13, 2011 SIP revision request included the amended MDE regulations, COMAR 26.11.02.09 and 26.11.02.10. Our limited approval of the May 13, 2011 SIP revision request, as amended on December 20, 2011, eliminates the inconsistency between the Maryland SIP and Maryland's present statutory and regulatory provisions regarding MDE's ability to permit electric generating stations when the electric generating stations do not receive CPCNs.
Section 110(a)(2)(C) of the CAA, 42 U.S.C. section 7410(a)(2)(C), requires the state SIP to have a program for regulation of construction and modification of stationary sources to assure that national ambient air quality standards (NAAQS) are achieved, including a permit program as required by Part C of Title I of the CAA for PSD and Part D of Title I of the CAA for NSR. Our limited approval of Maryland's SIP revision of May 13, 2011, as amended on December 20, 2011, ensures that the Maryland SIP has a permit program for the construction and modification of electric generating stations as required by Parts C and D of Title I of the CAA and ensures that the SIP provides for the attainment and maintenance of the NAAQS. Included in the May 13, 2011 proposed SIP revision is section 7-208(f) of the Md. Code Ann. which specifically requires the PSC to include in CPCNs the requirements of federal and state environmental laws and standards as identified by MDE. EPA's limited approval ensures the Maryland SIP is adequate to prevent significant deterioration of air quality in areas designated as attainment or unclassifiable as required by sections 110(a) and 161 of the CAA, 42 U.S.C. sections 7410(a) and 7471, and 40 CFR 51.166. EPA's limited approval of the Maryland permitting program for electric generating stations also ensures that the Maryland SIP meets plan requirements for nonattainment areas as required by Part D of Title I of the CAA. Because the provisions in the May 13, 2011 SIP submission, as amended on December 20, 2011, strengthen the Maryland SIP, EPA limitedly approves them into the Maryland SIP.
III. Limited Approval
Why is EPA granting only "Limited Approval" of Maryland's preconstruction program for electric generating stations for the Maryland SIP?
In general, EPA has determined that MDE's May 13, 2011 submission (#11-01), as amended by MDE's December 20, 2011 letter removing COMAR 20.79.01.07, strengthens Maryland's SIP by containing a permit program as required by Parts C and D of Title I of the CAA. However, we acknowledge that for the reasons stated below, the May 13, 2011 submission (as amended on December 20, 2011) does not fully meet all CAA requirements for SIPs. Therefore, EPA is granting limited approval in accordance with section 110(k) of the CAA, 42 U.S.C. section 7410(k).
A. Completeness Determinations
The May 13, 2011 Maryland SIP submission, as amended December 20, 2011, does not contain a requirement for the PSC to conduct completeness determinations for CPCN applications. Pursuant to 40 CFR 51.166(q)(1), a state SIP must require the permitting authority "to notify all applicants within a specified time period as to the completeness of the application or any deficiency in the application or information submitted." See 40 CFR 51.166(q)(1). However, as discussed more thoroughly in EPA's Response to Comments in Section IV below, we believe the PSC is complying with this requirement in its practice for issuing CPCNs such that the impact on CPCN applicants is minimized.
B. Permit Documents in One Location for Public Access
--This is a summary of a Federal Register article originally published on the page number listed below--
Final rule.
CFR Part: "40 CFR Part 52"
Citation: "77 FR 6963"
Document Number: "EPA-R03-OAR-2011-0623; FRL-9628-7"
Federal Register Page Number: "6963"
"Rules and Regulations"
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