Approval and Promulgation of Air Quality Implementation Plans; Maryland; Preconstruction Permitting Requirements for Electric Generating Stations in Maryland, 6963-6971 [2012-2984]
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Federal Register / Vol. 77, No. 28 / Friday, February 10, 2012 / Rules and Regulations
No objections to the proposed
temporary deviation were raised.
Vessels that can transit the bridge,
while in the closed-to-navigation
position, may continue to do so at any
time.
In accordance with 33 CFR 117.35(e),
the drawbridge must return to its regular
operating schedule immediately at the
end of the designated time period. This
deviation from the operating regulations
is authorized under 33 CFR 117.35.
Dated: January 27, 2012.
D.H. Sulouff,
District Bridge Chief, Eleventh Coast Guard
District.
[FR Doc. 2012–3102 Filed 2–9–12; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG–2012–0006]
Drawbridge Operation Regulations;
Merrimack River, Amesbury, MA
Coast Guard, DHS.
Notice of temporary deviation
from regulations.
AGENCY:
ACTION:
The Commander, First Coast
Guard District, has issued a temporary
deviation from the regulation governing
the operation of the 1st Lt. Derek S.
Hines Memorial Bridge, mile 5.8, across
the Merrimack River at Amesbury
(Newburyport), Massachusetts. The
deviation is necessary to facilitate
bridge rehabilitation and repairs. This
deviation allows the bridge to remain in
the closed position for four months.
DATES: This deviation is effective from
February 13, 2012 through May 11,
2012.
ADDRESSES: Documents mentioned in
this preamble as being available in the
docket are part of docket USCG–2012–
0006 and are available online at
www.regulations.gov, inserting USCG–
2012–0006 in the ‘‘Keyword’’ and then
clicking ‘‘Search’’. They are also
available for inspection or copying at
the Docket Management Facility (M–30),
U.S. Department of Transportation,
West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE.,
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call or
email Mr. Joe Arca, Project Officer, First
Coast Guard District,
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SUMMARY:
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joe.m.arca@uscg.mil or telephone (212)
668–7165. If you have questions on
viewing the docket, call Renee V.
Wright, Program Manager, Docket
Operations, telephone (202) 366–9826.
SUPPLEMENTARY INFORMATION: The 1st Lt.
Derek S. Hines Memorial Bridge, across
the Merrimack River, mile 5.8, at
Amesbury (Newburyport),
Massachusetts, has a vertical clearance
in the closed position of 13 feet at mean
high water and 20 feet at mean low
water. The drawbridge operation
regulations are listed at 33 CFR
117.605(c).
The owner of the bridge,
Massachusetts Department of
Transportation, requested a temporary
deviation from the regulations to
facilitate bridge rehabilitation repairs,
replacement of operating machinery,
structural steel, and highway deck on
the swing span.
Under this temporary deviation the
bridge may remain in the closed
position from February 13, 2012 through
May 11, 2012.
The bridge rarely opens during the
time period this temporary deviation
will be in effect. In addition, mariners
may use an alternate channel to the
south under the Chain Bridge, which is
a fixed highway bridge that provides 28
feet of vertical clearance at mean high
water and 35 feet of vertical clearance
at mean low water.
In accordance with 33 CFR 117.35(e),
the bridge must return to its regular
operating schedule immediately at the
end of the designated time period. This
deviation from the operating regulations
is authorized under 33 CFR 117.35.
Dated: February 1, 2012.
Gary Kassof,
Bridge Program Manager, First Coast Guard
District.
[FR Doc. 2012–3101 Filed 2–9–12; 8:45 am]
BILLING CODE 9110–04–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2011–0623; FRL–9628–7]
Approval and Promulgation of Air
Quality Implementation Plans;
Maryland; Preconstruction Permitting
Requirements for Electric Generating
Stations in Maryland
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
EPA is granting limited
approval of a State Implementation Plan
SUMMARY:
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6963
(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:
I. Background
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
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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
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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
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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
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CPCNs such that the impact on CPCN
applicants is minimized.
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B. Permit Documents in One Location
for Public Access
The May 13, 2011 Maryland SIP
submission, as amended December 20,
2011, does not contain a requirement for
the PSC to make available for public
inspection in one location the
documents from a CPCN applicant and
the reviewing agency’s analysis of the
effect on air quality from the proposed
construction or modification at an
electric generating station. Pursuant to
40 CFR 51.161(a) and (b)(1), a state SIP
shall provide for the ‘‘[a]vailability for
public inspection in at least one
location in the area affected of the
information submitted by the owner or
operator and of the State or local
agency’s analysis of the effect on air
quality.’’ See 40 CFR 51.161(a) and
(b)(1). As discussed more thoroughly in
EPA’s Response to Comments in Section
IV below, EPA believes the PSC
provides in its practice the opportunity
for public review of this information
through the availability of such
documents on its Web site. Therefore,
the impact on the public’s opportunity
to comment meaningfully is minimized.
When the PSC amends its regulations to
include the requirements of 40 CFR
51.161(a) and (b)(1) and 51.166(q)(1),
MDE may submit the revised regulations
for EPA’s consideration for full approval
of the permitting program for electric
generating stations in the Maryland SIP.
IV. EPA’s Response to Comments
Received on the Proposed Action
EPA received a single set of relevant
comments on its August 4, 2011 (76 FR
47090) proposed action to approve
revisions to the Maryland SIP. These
comments, provided by the
Environmental Integrity Project
(hereinafter referred to as ‘‘the
Commenter’’), raised concerns with
regard to EPA’s August 4, 2011
proposed action. A full set of these
comments is provided in the docket for
today’s final action. A summary of the
comments and EPA’s responses are
provided below.
Generally, the Commenter raised four
areas of concern. First, the Commenter
asserts that the proposed revision to the
Maryland SIP does not require
compliance with NSR requirements in
the CAA. Second, the Commenter
asserts the proposed revision to the
Maryland SIP allows the PSC, the air
permitting agency for electric generating
stations in Maryland, to waive or
modify regulatory requirements. Third,
the Commenter asserts the proposed
Maryland SIP revision does not meet
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minimum requirements in the CAA for
public participation, does not protect
the public’s right to review and
comment on draft permits, and does not
require the PSC to respond to
comments. Finally, the Commenter
asserts the proposed Maryland SIP
revision does not contain formal
requirements for completeness
determinations. EPA’s response to these
four comments is provided below.
Comment 1: The Commenter asserts
the proposed revision to the Maryland
SIP ‘‘does not clearly and
unambiguously mandate compliance
with New Source Review standards
under the Clean Air Act.’’ The
Commenter cites to section 110(a)(2)(C)
of the CAA, 42 U.S.C. section
7410(a)(2)(C), which requires SIPs to
include a permit program as required by
parts C and D of the CAA for PSD and
NSR. The Commenter also cites to 40
CFR 51.166(j) which includes
requirements that SIPs provide certain
requirements, including, but not limited
to, requirements that major stationary
sources or major modifications meet
applicable emission limitations under
40 CFR parts 60 and 61 and apply best
available control technology (BACT) for
each regulated NSR pollutant they
would have the potential to emit in
significant amounts or for each
regulated NSR pollutant for which there
is a significant net emissions increase.
The Commenter cites to 40 CFR
51.166(a)(1)(7)(ii) (requiring each SIP to
incorporate requirements of 40 CFR
51.166(j)–(r)) and to section 165(a)(2) of
the CAA, 42 U.S.C. section 7475(a)(2),
which requires major emitting facilities
to receive permits prior to construction.
Response 1: EPA does not agree with
the Commenter that the Maryland SIP
revision does not meet the above
requirements. Section 110(a)(2)(C) of the
CAA, 42 U.S.C. section 7410(a)(2)(C),
requires each SIP to include a permits
program as required in parts C and D of
the CAA (42 U.S.C. sections 7470–7492
and 7501–7515). 40 CFR 51.166
provides further details on the
requirements for the permits programs.
EPA believes the statutory and
regulatory requirements in the May 13,
2011 Maryland SIP submission, as
amended December 20, 2011, fulfill the
requirements of section 110(a)(2)(C) and
165(a)(2) of the CAA and 40 CFR 51.166.
Pursuant to Md. Code Ann., Public
Utilities Cos. sections 7–205 and 7–207,
electric generating stations may not be
modified or constructed without
receiving prior approvals from the PSC
through the PSC’s issuance of a permit
which is known as a CPCN. Section 7–
207 requires electric generating stations
to obtain CPCNs from the PSC prior to
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construction. Section 7–205 requires
electric generating stations to obtain
approval from the PSC prior to
commencing a modification to the
generating station. ‘‘Approval’’ as used
in the Maryland statutory provision
(section 7–205) means a CPCN issued
pursuant to sections 7–207 and 7–208.
See COMAR 20.79.01.02(4). The
Maryland statutory provisions in
sections 7–207 and 7–208 which EPA
proposed to include in the Maryland
SIP contain specific requirements for
the issuance of CPCNs. In particular,
section 7–208(f)(1) states that the PSC
shall include in each certificate it issues
‘‘(i) the requirements of the federal and
State environmental laws and standards
that are identified by the Department of
the Environment; and (ii) the methods
and conditions that the Commission
determines are appropriate to comply
with those environmental laws and
standards.’’ Section 7–208(f)(2) provides
that the PSC ‘‘may not adopt any
method or condition under paragraph
(1)(ii) of this subsection that the
Department of the Environment
determines is inconsistent with federal
and State environmental laws and
standards.’’
The Maryland regulatory provisions
EPA is limitedly approving in the SIP
revision further fulfill the Clean Air Act
requirements for SIPs. COMAR
20.79.03.02 contains the requirements
for applications for CPCNs and requires
applicants for CPCNs to include in
CPCN applications a description of the
effect on air quality including the ability
of the applicant to comply with PSD
and NSR provisions, a description of the
impact on PSD areas and nonattainment
areas, and all information and forms
required by MDE regulations for permits
to construct and operating permits
under COMAR 26.11. Further, COMAR
20.79.01 contains additional
requirements for electric generating
stations applying for CPCNs including
requirements for when modifications
need CPCNs.
EPA disagrees with the Commenter’s
claim that the Maryland SIP revision
does not meet the requirements of 40
CFR 51.166. EPA believes the revision
meets 40 CFR 51.166 through the
statutory and regulatory requirements
identified above. As previously
discussed, COMAR 20.79.03.02 requires
CPCN applicants to identify relevant
requirements of the CAA. Section 7–
208(f) requires inclusion of federal
environmental laws and standards
identified by MDE which is the
Maryland environmental agency which
implements PSD and NSR as well as all
requirements of the CAA for all sources
in Maryland except electric generating
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stations. Because the Maryland SIP as
implemented through MDE requires
sources to apply BACT or Lowest
Achievable Emissions Rate at COMAR
26.11.06.14 and 26.11.17, because CPCN
applicants identify requirements of the
CAA needed for construction or
modification projects, and because the
emissions standards and standards of
performance under 40 CFR Parts 60 and
61 would be identified by MDE through
section 7–208(f), EPA believes the
Maryland SIP revision meets the
requirements of 40 CFR 51.166 as
specifically identified by the
Commenter, except as discussed below
regarding 40 CFR 51.161(b)(1) and
51.166(q)(1) (relating to availability of
permit documents and completeness
determinations).
EPA believes that the statutory
provisions in sections 7–205, 7–207,
and 7–208 and the regulatory provisions
in COMAR 20.79 contain the required
and necessary permits program for PSD
and NSR as required in sections
110(a)(2)(C) and 165(a)(2) of the CAA,
42 U.S.C. sections 7410(a)(2)(C) and
7475(a)(2), and by 40 CFR 51.166. The
Maryland provisions included in the
SIP revision require CPCNs prior to
construction or modification of electric
generating stations. See sections 7–205,
7–207, and 7–208. In addition, section
7–208(f) specifically requires the PSC to
include in CPCNs federal environmental
requirements identified by MDE. MDE
implements the SIP approved PSD and
NSR permit program for sources other
than electric generating stations in
Maryland through COMAR 26.11.06.14
and 26.11.17.
Comment 2: The Commenter asserts
the proposed revisions to the Maryland
SIP contain a provision which allows
the PSC authority to waive CAA
requirements in COMAR 20.79. See
COMAR 20.79.01.07. The Commenter
asserts that the CAA requires a SIP to
unambiguously require an applicant for
a CPCN to comply with NSR
requirements such as BACT. The
Commenter asserts that the PSC has
‘‘extremely broad authority to waive or
modify any of the regulatory provisions
in Title 20, Subchapter 79, which
governs the CPCN application process.’’
The Commenter asserts that the letter
submitted by the Secretary of MDE to
the Regional Administrator of EPA
Region III on July 15, 2011 stating that
MDE would ensure that the PSC does
not issue waivers or modifications not
in compliance with the CAA and federal
regulations was not sufficient to serve as
a binding requirement on the state to
ensure CPCN applicants comply with
NSR requirements. The Commenter
asserts that section 7–208(f) is
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insufficient to show that NSR
requirements will be included in all
CPCNs because section 7–208 ‘‘appears
to apply only to the construction of an
EGU when either (1) associated
overhead transmission lines designed to
carry a voltage in excess of 69,000 volts
are also being constructed; or (2) the
entity constructing the EGU is
exercising the right of condemnation in
connection therewith.’’ See section 7–
208(a).
Response 2: EPA notes that in a
December 20, 2011 letter from Robert M.
Summers, Secretary of MDE, to Shawn
M. Garvin, Regional Administrator, EPA
Region III, MDE officially withdrew
COMAR 20.79.01.07 from MDE’s
proposal for inclusion in the Maryland
SIP. In taking final action on Maryland’s
proposed SIP revision, EPA is acting on
the remaining statutes and regulations
submitted by Maryland. Therefore,
EPA’s limited approval of the PSC
permitting program for electric
generating stations does not include
COMAR 20.79.01.07 and that provision
is not included in the Maryland SIP.
Nevertheless, EPA disagrees with the
Commenter in general on the waiver
issue and believes the Letter from
Robert M. Summers, Secretary of MDE,
to Shawn M. Garvin, Regional
Administrator, EPA Region III (July 15,
2011) provides assurances that MDE
will ensure that its sister Maryland
agency, the PSC, will include all
necessary PSD and NSR requirements as
required by section 7–208(f). EPA
believes that the PSC’s waiver authority
in COMAR 20.79.01.07 is clearly
restricted by the statutory restraint on
the PSC’s CPCN authority in section 7–
208(f) which provides that the PSC shall
include federal environmental laws and
standards identified by MDE in CPCNs.
This statutory restraint is clearly evident
from the plain language of the statute.
The July 15, 2011 Letter from Robert M.
Summers to EPA confirms the statutory
limitation on the PSC’s waiver
authority. EPA has given considerable
weight to the Summers’ July 15, 2011
letter because MDE has expertise in
interpreting Maryland law. Presently,
EPA has no reason to believe the PSC
will exercise its waiver authority to
issue CPCN’s without environmental
requirements identified by MDE
contrary to section 7–208(f). In addition,
as of December 20, 2011, the PSC’s
waiver authority in COMAR 20.79.01.07
was removed from Maryland’s proposed
SIP revision and is therefore not
included in EPA’s limited approval of
the Maryland permitting program for
electric generating stations. Therefore,
EPA believes the Maryland SIP revision
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meets the requirements of the CAA for
the limited approval.
Additionally, EPA disagrees with the
Commenter that section 7–208 does not
apply to the construction and
modification of all electric generating
stations in Maryland. EPA believes the
Commenter’s assertion is contrary to
established Maryland case law. Section
7–207 was originally codified as
Maryland Ann. Code, Article 78, section
54A (1968), and section 7–208 was
previously codified as Maryland Ann.
Code, Article 78, section 54B (1971). In
Baltimore Gas & Electric Co. v. Dept. of
Health & Mental Hygiene, 284 Md. 216,
225–26 (1979), the Maryland Court of
Appeals interpreted Maryland Ann.
Code, Article 78, sections 54A and 54B
as providing a comprehensive plan for
the erection of new power plants. The
Maryland Court of Appeals stated
section 54A prohibited construction of a
generating station or overhead
transmission line without first obtaining
a CPCN and also found that section 54B
(the predecessor of Md. Ann. Code,
Public Utilities Co. section 7–208)
simply provided the procedures for
obtaining a CPCN under section 54A
(now codified as section 7–207). Id.
Likewise, today, section 7–207 requires
CPCNs prior to construction of electric
generating stations, and section 7–208
provides the detailed requirements for
those CPCNs.
Further, COMAR 20.79.01.02(B)(4)
clearly confirms that CPCNs issued for
modification projects would be CPCNs
issued pursuant to requirements in
sections 7–207 and 7–208. Because
Maryland case law found that Maryland
Ann. Code, Article 78, sections 54A and
54B (now codified as sections 7–207
and 7–208) apply to construction of
electrical generating stations or
transmission lines and because the
Maryland regulations included in the
SIP revision state that section 7–208
applies also to modifications, EPA does
not believe the Commenter’s assertion is
valid or a correct interpretation of
Maryland law.
Comment 3: The Commenter asserts
the proposed Maryland SIP revisions do
not meet minimum standards for public
participation set forth in the CAA and
do not protect the public’s right to
review and comment on a draft CPCN.
The Commenter also states the PSC does
not allow for sufficient time for
response to public comments. The
Commenter asserts the proposed SIP
revision does not contain a formal
process for ensuring the PSC responds
to comments and asserts the letter from
H. Robert Erwin, Jr., General Counsel,
PSC, to Robert M. Summers, Secretary,
MDE (January 25, 2011) is inadequate to
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establish an independent obligation
under the SIP on the PSC to respond to
comments during the CPCN permitting
process. The Commenter asserts that the
CAA requires a public hearing and an
opportunity for public comment during
the NSR permit process and that the
permitting agency must make available
to the public information submitted by
the owner or operator of the applicant
as well as the permit agency’s analysis
of the effect on air quality and the draft
approval in at least one location. See 40
CFR 51.161(a), 51.161(b), and 51.166(q).
The Commenter states the SIP must
provide at least 30 days for public
comments. 40 CFR 51.161(b)(2). The
Commenter asserts that the Md. Code
Ann., Pub. Util. Cos. section 7–207(d)
and related regulations do not meet
these requirements.
Response 3: EPA agrees with the
Commenter that the CAA does require
public participation in NSR permitting,
including the right to review
documents. However, EPA disagrees
with the Commenter regarding the
proposed Maryland SIP revision
because EPA believes the Maryland SIP
revision meets the requirements of the
CAA for public participation with the
exception of the requirement for the SIP
to require the permitting agency to make
available to the public in at least one
location information submitted by the
owner or operator of the applicant as
well as the permit agency’s analysis of
the effect on air quality and the draft
approval. See 40 CFR 51.161(a) and
(b)(1).
Sections 7–207(c) and (d) and 7–
208(d) contain the CAA’s public
participation requirements for SIPs. As
discussed above, sections 7–207 and 7–
208 apply to CPCNs for construction as
well as for modification of electric
generating stations. Section 7–207(c)
and (d) require the PSC to provide
notice of an application for a CPCN to
all interested persons, to provide an
opportunity for public comment, and to
hold a public hearing on the CPCN
application. Section 7–207(d) also
requires weekly notice of the public
hearing and opportunity for comment in
a newspaper of general circulation in
the four weeks prior to a hearing.
Section 7–208(d) requires the PSC to
provide notice to all interested persons
upon receipt of an application for a
CPCN and to hold a public hearing as
required by section 7–207 upon
publication of proper notice.
However, EPA agrees with the
Commenter that a SIP must require the
permitting agency to make available to
the public in at least one location
information submitted by the permit
applicant as well as the permit agency’s
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analysis of the effect on air quality and
the draft approval. See 40 CFR 51.161(a)
and (b)(1). As explained in this
rulemaking, EPA is granting limited
approval to the Maryland SIP revision
until such time as MDE submits a
statutory or regulatory requirement that
meets the requirements of 40 CFR
51.161(a) and (b)(1). EPA is granting this
limited approval to the Maryland SIP
revision because EPA believes the PSC
in practice is providing the public with
full access to the public information
submitted by a CPCN applicant as well
as the PSC’s and MDE’s analysis of the
effect on air quality from an application.
All public records relevant to a CPCN
application and the PSC’s official
actions on those applications are
available to the public for review and
download through access to the PSC’s
publicly available Web page at https://
www.psc.state.md.us/. The purpose of
providing an opportunity for public
review is served by this method of
availability such that EPA is granting a
limited approval until the PSC and MDE
include such a requirement in a request
for SIP revision.
In addition, we gain additional
assurance that the public will have
available for inspection information
submitted by a CPCN applicant and
associated PSC analyses through the
PSC’s statutory obligation to comply
with the Maryland Public Information
Act, Md. Code Ann., State Government
sections 10–611 to 10–630. The
Maryland Public Information Act
applies to all branches of the Maryland
state government and provides persons
the right to review the available records
that are disclosable by the State and the
right to obtain copies of those records.
This statute provides that all persons are
entitled to access to information about
the affairs of government and the official
acts of public officials and employees.
See Maryland Public Information Act,
section 10–612(a). The Maryland Public
Information Act permits persons to
inspect public records at any reasonable
time within thirty days of a request and
provides a process for persons to
challenge the withholding of public
documents. See Maryland Public
Information Act, sections 10–614 and
10–623.
EPA believes these statutory
obligations as well as the practice of
making documents publicly available
over the PSC’s Web page meet the intent
of the requirements for SIPs in the CAA
and in the regulations at 40 CFR 51.161
and 51.166. Hence, EPA is granting
limited approval to this SIP revision
until such time as Maryland submits a
statutory or regulatory requirement
meeting 40 CFR 51.161(a) and (b)(1).
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The Commenter also addressed the
PSC’s obligations to respond to public
comments. In reviewing SIPs submitted
for approval, EPA must follow the
requirements in section 110 of the CAA
and in 40 CFR 51.161 and 51.166. The
Maryland SIP revision meets these
requirements. As discussed above, EPA
believes the Maryland SIP revision
provides for public hearings for CPCNs
and an opportunity for public comment
as required by section 165(a)(2) of the
CAA and 40 CFR 51.161. The PSC in its
practice makes available to the public
all information including the CPCN
application as required by 40 CFR
51.161(a) and (b) and 51.166(q) through
complying with Md. Code Ann., Public
Utilities Cos. sections 7–207 and 7–208
and complying with its statutory
mandate in the Maryland Public
Information Law. In addition, the PSC
provides further public access to
documents relevant to CPCN obligations
via its publically-available docket on the
PSC’s Web site. While the Maryland
Public Information Law and the PSC’s
Web site are not included in the SIP
revision, EPA believes that the PSC is
obligated to act in accordance with
these obligations and that the PSC’s
practice in using the Web site
strengthens public participation.
If these public access provisions and
policies were to be repealed or
substantially changed, EPA would
reevaluate the limited approval of the
SIP revision.
EPA reviews SIPs for their
compliance with requirements in the
CAA and in the implementing
regulations. EPA agrees with the
Commenter that responding to
comments is essential to ensuring
adequate public participation. However,
EPA disagrees with the Commenter that
the Maryland provisions for electric
generating stations are not SIP
approvable. EPA has previously stated
that adequate public participation and
comment requires air permitting
agencies to address and respond to
public comment. See In the Matter of
Onyx Environmental Services, Petition
V–2005–1 at 7 (February 1, 2006) (citing
Home Box Office v. FCC, 567 F.2d 9, 35
(DC Cir. 1977) (stating ‘‘the opportunity
to comment is meaningless unless the
agency responds to significant points
raised by the public’’). See also In the
Matter of Citgo Refining and Chemicals
Co. L.P., Petition VI–2007–01 at 7 (May
28, 2009) (stating permitting authorities
have a responsibility to respond to
significant comments); In the Matter of
Kerr-McGee Gathering, LLC, Petition
VIII–2007 at 4; In the Matter of
Wheelabrator, Baltimore L.P., Permit
24–510–01–886 at 7 (April 14, 2010).
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EPA believes an essential correlative in
taking public comment on permits is
responding to those comments such that
an adequate record of the permit issuer’s
rationale is created. Responding to
public comments ensures meaningful
public participation in permitting as
intended by the Clean Air Act.
In response to EPA’s concerns
regarding the PSC’s responding to
comments on CPCN applications, the
General Counsel for the PSC did state in
his January 25, 2011 letter to EPA
referred to previously that interested
persons would be able to raise to a PSC
Hearing Examiner, during a prehearing
scheduling conference which is part of
the CPCN review process, any failure by
the PSC to respond to public comments
and the need for adequate time for the
PSC to respond to comments in a
scheduling order. See Robert Erwin’s
January 25, 2011 letter to MDE. In
addition, the PSC’s General Counsel
stated that the failure to respond to
comments could be brought to the PSC’s
attention before a CPCN becomes final
during the CPCN approval hearing
process. Id. EPA believes the
commitment to respond to comments
from the PSC’s General Counsel as
evidenced in the General Counsel’s
January 25, 2011 letter satisfies EPA’s
concerns that the PSC will respond to
public comments on CPCN applications.
EPA believes the Maryland SIP revision
provides for full public participation as
required by sections 110 and 165 of the
CAA and its implementing regulations
at 40 CFR 51.161 and 51.166 (with the
exception of providing public access to
documents in one location as discussed
above). See id.
Comment 4: Finally, the Commenter
asserts that the proposed Maryland SIP
revision does not contain a requirement
that the permit reviewing authority (the
PSC) shall notify all permit applicants
within a specified time period as to the
completeness of the permit application
or any deficiency in the application as
required in 40 CFR 51.166(q)(1).
Response 4: EPA agrees with the
Commenter that the Maryland SIP
revision does not formally contain a
requirement directly meeting 40 CFR
51.166(q)(1). EPA is granting limited
approval to the PSC permitting program
in the Maryland SIP until Maryland
submits a regulation meeting 40 CFR
51.166(q)(1) (as well as 40 CFR 51.161(a)
and (b)(1) as discussed previously).
However, EPA has granted limited
approval because EPA is satisfied that
the PSC is meeting this requirement in
practice. EPA believes the revised
Maryland SIP as implemented by the
PSC will appropriately address CPCN
completeness determinations.
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According to 40 CFR 51.166(q)(1), a SIP
shall provide that the ‘‘reviewing
authority shall notify all applicants
within a specified time period as to the
completeness of the application or any
deficiency in the application or
information submitted.’’ EPA believes
the General Counsel’s January 25, 2011
letter addresses this issue. See Robert
Erwin’s January 25, 2011 letter to MDE.
The PSC’s General Counsel stated in the
January 25, 2011 letter that parties
should raise the issue of completeness
determinations with the PSC Hearing
Examiner at the Prehearing Scheduling
Conference which is held during the
CPCN application review process. The
General Counsel stated that the PSC’s
Hearing Examiner for each CPCN
application would hear argument and
make a determination as to
completeness of applications and
subsequently either order an incomplete
CPCN application be supplemented or
make a finding on the record that a
CPCN application was complete. See id.
We believe the PSC provides adequate
opportunities during the CPCN
application process for parties to raise
the issue of incomplete CPCN
applications.
In addition, the statutory and
regulatory provisions in the proposed
Maryland SIP revision support EPA’s
belief that the PSC will act on
completeness determinations. Pursuant
to section 7–205(d), the PSC must
render a decision on a CPCN application
within 150 days of the filing of the
CPCN application. See Md. Code Ann.,
Public Util. Cos. section 7–205(d). In
addition, section 7–207(d) provides the
requirements for the PSC to hold public
hearings on CPCN applications, and
section 7–208(e) follows along with the
requirements in section 7–207(d) by
requiring the PSC to grant or deny CPCN
applications within 90 days of the
conclusion of the hearings on the CPCN
applications. Finally, the PSC’s
implementing regulations at COMAR
20.79.02.03, require the PSC to impose
a schedule of procedural dates to ensure
timely completion of the CPCN
application process. Reading these
statutory and regulatory provisions
together with the PSC General Counsel’s
January 25, 2011 letter, EPA believes the
Maryland SIP revision together with the
PSC’s implementation as described
above satisfies the intent of 40 CFR
51.166(q)(1) sufficient for EPA to
provide limited approval to the
Maryland SIP revision until Maryland
submits a regulation from the PSC for
SIP approval formally addressing the
requirements of 40 CFR 51.166(q)(1).
Furthermore, EPA believes the
requirements of 40 CFR 51.166(q)(1) are
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intended to protect the interests of
permit applicants in receiving timely
review of permit applications. EPA does
not believe that the Commenter is
adversely affected by the PSC’s failure
to do a completeness determination on
a particular CPCN. EPA has no reason
to believe that the PSC is not conducting
completeness determinations as
discussed by the PSC’s General Counsel
and has received no adverse comment
on this issue from the regulated and
impacted community of electric
generating stations.
Finally, EPA notes that the
Commenter included additional
statements in its Comments relating to
CPCNs issued previously by the PSC
and the federal enforceability of those
CPCNs. To the extent that these
comments do not relate to the Maryland
SIP revision and are not relevant to
EPA’s limited approval of the SIP
revision, EPA is not responding to those
Comments here.
V. Final Action
EPA is granting limited approval in
accordance with section 110(k) of the
CAA, 42 U.S.C. section 7410(k), of
MDE’s May 13, 2011 SIP submission
(#11–01), as amended on December 20,
2011 with the removal of COMAR
20.79.01.07, because the submission as
amended strengthens Maryland’s SIP.
When the PSC adopts amended
regulations which meet the
requirements of 40 CFR 51.161(a) and
(b)(1) and 51.166(q)(1), MDE may
request full SIP approval of the
permitting program for construction and
modification of electric generating
stations in Maryland.
V. Statutory and Executive Order
Reviews
A. General Requirements
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA 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 CAA. 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
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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 CAA; 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.
proceedings to enforce its requirements.
(See section 307(b)(2).)
B. Submission to Congress and the
Comptroller General
List of Subjects in 40 CFR Part 52
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
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Dated: January 31, 2012.
W.C. Early,
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:
■ a. Revising the heading of the table.
■ b. Revising the existing entries for
COMAR 26.11.02.09 and 26.11.02.10.
■ c. Adding entries for COMAR
20.79.01, 20.79.02 and 20.79.03 in
numerical order after the existing entry
for COMAR 03.03.06.06.
■ d. Adding new entries for ‘‘Public
Utility Companies Article of the
Annotated Code of Maryland’’ at the
end of the table.
The amendments read as follows:
■
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by April 10, 2012. 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
preconstruction requirements for
Electric Generating Stations in
Maryland may not be challenged later in
§ 52.1070
*
Identification of plan.
*
*
(c)* * *
*
*
EPA-APPROVED REGULATIONS, TECHNICAL MEMORANDA, AND STATUTES IN THE MARYLAND SIP
Code of Maryland administrative regulations (COMAR)
citation
*
State effective
date
Title/subject
*
*
*
26.11.02
26.11.02.09 ..........................
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*
*
*
Permits, Approvals, and Registrations
Sources Subject to Permits
to Construct and Approvals.
Sources Exempt from Permits to Construct and Approvals.
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citation at 40 CFR 52.1100
EPA approval date
Frm 00029
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where the document begins].
2/10/12 [Insert page number
where the document begins].
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Revised 26.11.02.09A(1), (2); limited approval.
Revised 26.11.02.10A; limited approval.
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EPA-APPROVED REGULATIONS, TECHNICAL MEMORANDA, AND STATUTES IN THE MARYLAND SIP—Continued
Code of Maryland administrative regulations (COMAR)
citation
*
20.79.01
State effective
date
Title/subject
*
*
*
*
*
*
Applications Concerning the Construction or Modification of Generating Stations and Overhead Transmission Lines—
General
20.79.01.01A, .01C, and
.01D.
Scope ..................................
12/28/09
20.79.01.02A and .02B(1)
Definitions ............................
through (13), (14)(a), (15),
(16), and (18) through (20).
20.79.01.06 .......................... Modifications to Facilities at
a Power Plant.
12/28/09
20.79.02
12/28/09
2/10/12 [Insert page number
where the document begins].
2/10/12 [Insert page number
where the document begins].
2/10/12 [Insert page number
where the document begins].
Added; limited approval.
Added; limited approval.
Added; limited approval.
Applications Concerning the Construction or Modification of Generating Stations and Overhead Transmission Lines—
Administrative Provisions
20.79.02.01 ..........................
Form of Application .............
2/10/97
20.79.02.02 ..........................
Distribution of Application ....
2/10/97;
11/8/04
20.79.02.03 ..........................
Proceedings on the Application.
2/10/97;
11/8/04
20.79.03
Additional explanation/
citation at 40 CFR 52.1100
EPA approval date
2/10/12 [Insert page number
where the document begins].
2/10/12 [Insert page number
where the document begins].
2/10/12 [Insert page number
where the document begins].
Added; limited approval.
Added; limited approval.
Added; Limited approval.
Applications Concerning the Construction or Modification of Generating Stations and Overhead Transmission Lines—Details
of Filing Requirements—Generating Stations
20.79.03.01 ..........................
Description of Generating
Station.
2/10/97;
11/8/04
20.79.03.02A and .02B(1)
and (2).
Environmental Information ...
2/10/97;
11/8/04
*
*
*
Annotated Code of Maryland
citation
2/10/12 [Insert page number
where the document begins].
2/10/12 [Insert page number
where the document begins].
*
Title/subject
Added; limited approval.
Added; limited approval.
*
State effective
date
*
EPA approval date
*
Additional explanation/
citation at 40 CFR 52.1100
Public Utility Companies Article of the Annotated Code of Maryland
Section 7–205 ......................
Electric Companies—Modification of Power Plant.
7/01/06
Section 7–207(a), (b)(1), (c),
(d), and (e).
Generating Stations or
Transmission Lines—General Certification Procedure.
Generating Stations or
Transmission Lines—Onsite Generated Electricity;
Approval Process.
Generating Stations or
Transmission Lines—Joint
Construction of Station
and Associated Lines.
7/01/07
Section 7–207.1(a) and (e) ..
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Section 7–208 (a)(1), (b)
through (f), and (h)(2).
*
*
*
*
2/10/12 [Insert page number
where the document begins].
2/10/12 [Insert page number
where the document begins].
Added; limited approval.
7/01/07
2/10/12 [Insert page number
where the document begins].
Added; limited approval.
7/01/01
2/10/12 [Insert page number
where the document begins].
Added; limited approval.
Added; limited approval.
*
[FR Doc. 2012–2984 Filed 2–9–12; 8:45 am]
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DEPARTMENT OF HEALTH AND
HUMAN SERVICES
42 CFR Part 71
[Docket No. CDC–2012–0003]
RIN 0920–AA47
Establishment of User Fees for
Filovirus Testing of Nonhuman Primate
Liver Samples
Centers for Disease Control and
Prevention (CDC), Department of Health
and Human Services (HHS).
ACTION: Direct final rule and request for
comments.
AGENCY:
Through this Direct Final
Rule, the Centers for Disease Control
and Prevention (CDC), located within
the Department of Health and Human
Services (HHS) is establishing a user fee
for filovirus testing of all nonhuman
primates that die during HHS/CDCrequired 31-day quarantine period for
any reason other than trauma. We are
amending regulations to establish a
filovirus testing service at HHS/CDC
because testing is no longer being
offered by the only private, commercial
laboratory that previously performed
these tests. This testing service will be
funded through user fees. The direct
final rule does not impose any new
burdens on the regulated community
because the testing of non-human
primates for filovirus is a long-standing
requirement and the amount of the user
fee is consistent with the amount
previously charged commercially. HHS/
CDC is therefore publishing a direct
final rule because it does not expect to
receive any significant adverse comment
and believes that the establishment of
an HHS/CDC testing program and
imposition of user fees are noncontroversial. However, in this Federal
Register, HHS/CDC is simultaneously
publishing a companion notice of
proposed rulemaking that proposes
identical filovirus testing and user fee
requirements. If HHS/CDC does not
receive any significant adverse comment
on this direct final rule within the
specified comment period, it will
publish a notice in the Federal Register
confirming the effective date of this
final rule within 30 days after the
comment period on the direct final rule
ends and withdraw the notice of
proposed rulemaking. If HHS/CDC
receives any timely significant adverse
comment, it will withdraw the direct
final rule in part or in whole by
publication of a document in the
Federal Register within 30 days after
the comment period ends and proceed
with notice and comment under the
wreier-aviles on DSK5TPTVN1PROD with RULES
SUMMARY:
VerDate Mar<15>2010
17:10 Feb 09, 2012
Jkt 226001
notice of proposed rulemaking
published elsewhere in this issue of the
Federal Register. A significant adverse
comment is one that explains: Why the
direct final rule is inappropriate,
including challenges to the rule’s
underlying premise or approach; or why
the direct final rule will be ineffective
or unacceptable without a change.
DATES: The direct final rule is effective
on March 12, 2012 unless significant
adverse comment is received by April
10, 2012. If we receive no significant
adverse comment within the specified
comment period, we intend to publish
a notice confirming the effective date of
the final rule in the Federal Register
within 30 days after the end of the
comment period on this direct final
rule. If we receive any timely significant
adverse comment, we will withdraw
this final rule in part or in whole by
publication of a notice in the Federal
Register within 30 days after the
comment period ends.
ADDRESSES: You may submit comments,
identified by ‘‘RIN 0920–AA47’’: by any
of the following methods:
• Internet: Access the Federal erulemaking portal at https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Division of Global Migration
and Quarantine, Centers for Disease
Control and Prevention, 1600 Clifton
Road NE., MS–03, Atlanta, Georgia
30333, ATTN: NHP DFR.
Instructions: All submissions received
must include the agency name and
docket number or Regulation Identifier
Number (RIN) for this rulemaking. All
comments will be posted without
change to https://regulations.gov,
including any personal information
provided. For detailed instructions on
submitting comments and additional
information on the rulemaking process,
see the ‘‘Public Participation’’ heading
of the SUPPLEMENTARY INFORMATION
section of this document.
Docket: For access to the docket to
read background documents or
comments received, please go to
https://www.regulations.gov. Comments
will be available for public inspection
Monday through Friday, except for legal
holidays, from 9 a.m. until 5 p.m.,
Eastern Time, at 1600 Clifton Road NE.,
Atlanta, Georgia 30333. Please call
ahead to 1–866–694–4867 and ask for a
representative in the Division of Global
Migration and Quarantine (DGMQ) to
schedule your visit. To download an
electronic version of the rule, access
https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For
questions concerning this direct final
rule: Ashley A. Marrone, JD, Centers for
PO 00000
Frm 00031
Fmt 4700
Sfmt 4700
6971
Disease Control and Prevention, 1600
Clifton Road NE., Mailstop E–03,
Atlanta, Georgia 30333; telephone 404–
498–1600. For information concerning
program operations: Dr. Robert Mullan,
Centers for Disease Control and
Prevention, 1600 Clifton Road NE.,
Mailstop E–03, Atlanta, Georgia 30333;
telephone 404–498–1600.
SUPPLEMENTARY INFORMATION:
This preamble is organized as follows:
I. Public Participation
II. Background
III. Rationale for Direct Final Rule
IV. User Fees
V. Services and Activities Covered by User
Fees
VI. Analysis of User Fee Charge (Cost to
Government)
VII. Payment Instructions
VIII. Regulatory Analysis
IX. References
I. Public Participation
Interested persons are invited to
participate in this rulemaking by
submitting written views, opinions,
recommendations, and data. Comments
received, including attachments and
other supporting materials, are part of
the public record and subject to public
disclosure. Do not include any
information in your comment or
supporting materials that you do not
wish to be disclosed publicly.
Comments are invited on any topic
related to this direct final rule.
II. Background
Filoviruses belong to a family of
viruses known to cause severe
hemorrhagic fever in humans and
nonhuman primates (NHPs). So far, only
two members of this virus family have
been identified: Ebola virus and
Marburg virus. Five species of Ebola
virus have been acknowledged: Zaire,
Sudan, Reston, Ivory Coast, and
Bundibugyo. Most strains of Ebola virus
can be highly fatal in humans, and
while the Reston strain is the only strain
of filovirus that has not been reported to
cause disease in humans, it can be fatal
in monkeys. (https://www.cdc.gov/
ncidod/dvrd/spb/mnpages/dispages/
filoviruses.htm).
Ebola hemorrhagic fever was first
recognized in 1976, when two
epidemics occurred in southern Sudan
and in Zaire. Since that time, multiple
outbreaks have occurred, mostly in
Central Africa, and all have been
associated with high (45–90%) casefatality rates in humans (for an updated
E:\FR\FM\10FER1.SGM
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]]>Agencies
[Federal Register Volume 77, Number 28 (Friday, February 10, 2012)]
[Rules and Regulations]
[Pages 6963-6971]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-2984]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2011-0623; FRL-9628-7]
Approval and Promulgation of Air Quality Implementation Plans;
Maryland; Preconstruction Permitting Requirements for Electric
Generating Stations in Maryland
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
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:
I. Background
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
[[Page 6964]]
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
[[Page 6965]]
CPCNs such that the impact on CPCN applicants is minimized.
B. Permit Documents in One Location for Public Access
The May 13, 2011 Maryland SIP submission, as amended December 20,
2011, does not contain a requirement for the PSC to make available for
public inspection in one location the documents from a CPCN applicant
and the reviewing agency's analysis of the effect on air quality from
the proposed construction or modification at an electric generating
station. Pursuant to 40 CFR 51.161(a) and (b)(1), a state SIP shall
provide for the ``[a]vailability for public inspection in at least one
location in the area affected of the information submitted by the owner
or operator and of the State or local agency's analysis of the effect
on air quality.'' See 40 CFR 51.161(a) and (b)(1). As discussed more
thoroughly in EPA's Response to Comments in Section IV below, EPA
believes the PSC provides in its practice the opportunity for public
review of this information through the availability of such documents
on its Web site. Therefore, the impact on the public's opportunity to
comment meaningfully is minimized. When the PSC amends its regulations
to include the requirements of 40 CFR 51.161(a) and (b)(1) and
51.166(q)(1), MDE may submit the revised regulations for EPA's
consideration for full approval of the permitting program for electric
generating stations in the Maryland SIP.
IV. EPA's Response to Comments Received on the Proposed Action
EPA received a single set of relevant comments on its August 4,
2011 (76 FR 47090) proposed action to approve revisions to the Maryland
SIP. These comments, provided by the Environmental Integrity Project
(hereinafter referred to as ``the Commenter''), raised concerns with
regard to EPA's August 4, 2011 proposed action. A full set of these
comments is provided in the docket for today's final action. A summary
of the comments and EPA's responses are provided below.
Generally, the Commenter raised four areas of concern. First, the
Commenter asserts that the proposed revision to the Maryland SIP does
not require compliance with NSR requirements in the CAA. Second, the
Commenter asserts the proposed revision to the Maryland SIP allows the
PSC, the air permitting agency for electric generating stations in
Maryland, to waive or modify regulatory requirements. Third, the
Commenter asserts the proposed Maryland SIP revision does not meet
minimum requirements in the CAA for public participation, does not
protect the public's right to review and comment on draft permits, and
does not require the PSC to respond to comments. Finally, the Commenter
asserts the proposed Maryland SIP revision does not contain formal
requirements for completeness determinations. EPA's response to these
four comments is provided below.
Comment 1: The Commenter asserts the proposed revision to the
Maryland SIP ``does not clearly and unambiguously mandate compliance
with New Source Review standards under the Clean Air Act.'' The
Commenter cites to section 110(a)(2)(C) of the CAA, 42 U.S.C. section
7410(a)(2)(C), which requires SIPs to include a permit program as
required by parts C and D of the CAA for PSD and NSR. The Commenter
also cites to 40 CFR 51.166(j) which includes requirements that SIPs
provide certain requirements, including, but not limited to,
requirements that major stationary sources or major modifications meet
applicable emission limitations under 40 CFR parts 60 and 61 and apply
best available control technology (BACT) for each regulated NSR
pollutant they would have the potential to emit in significant amounts
or for each regulated NSR pollutant for which there is a significant
net emissions increase. The Commenter cites to 40 CFR
51.166(a)(1)(7)(ii) (requiring each SIP to incorporate requirements of
40 CFR 51.166(j)-(r)) and to section 165(a)(2) of the CAA, 42 U.S.C.
section 7475(a)(2), which requires major emitting facilities to receive
permits prior to construction.
Response 1: EPA does not agree with the Commenter that the Maryland
SIP revision does not meet the above requirements. Section 110(a)(2)(C)
of the CAA, 42 U.S.C. section 7410(a)(2)(C), requires each SIP to
include a permits program as required in parts C and D of the CAA (42
U.S.C. sections 7470-7492 and 7501-7515). 40 CFR 51.166 provides
further details on the requirements for the permits programs. EPA
believes the statutory and regulatory requirements in the May 13, 2011
Maryland SIP submission, as amended December 20, 2011, fulfill the
requirements of section 110(a)(2)(C) and 165(a)(2) of the CAA and 40
CFR 51.166.
Pursuant to Md. Code Ann., Public Utilities Cos. sections 7-205 and
7-207, electric generating stations may not be modified or constructed
without receiving prior approvals from the PSC through the PSC's
issuance of a permit which is known as a CPCN. Section 7-207 requires
electric generating stations to obtain CPCNs from the PSC prior to
construction. Section 7-205 requires electric generating stations to
obtain approval from the PSC prior to commencing a modification to the
generating station. ``Approval'' as used in the Maryland statutory
provision (section 7-205) means a CPCN issued pursuant to sections 7-
207 and 7-208. See COMAR 20.79.01.02(4). The Maryland statutory
provisions in sections 7-207 and 7-208 which EPA proposed to include in
the Maryland SIP contain specific requirements for the issuance of
CPCNs. In particular, section 7-208(f)(1) states that the PSC shall
include in each certificate it issues ``(i) the requirements of the
federal and State environmental laws and standards that are identified
by the Department of the Environment; and (ii) the methods and
conditions that the Commission determines are appropriate to comply
with those environmental laws and standards.'' Section 7-208(f)(2)
provides that the PSC ``may not adopt any method or condition under
paragraph (1)(ii) of this subsection that the Department of the
Environment determines is inconsistent with federal and State
environmental laws and standards.''
The Maryland regulatory provisions EPA is limitedly approving in
the SIP revision further fulfill the Clean Air Act requirements for
SIPs. COMAR 20.79.03.02 contains the requirements for applications for
CPCNs and requires applicants for CPCNs to include in CPCN applications
a description of the effect on air quality including the ability of the
applicant to comply with PSD and NSR provisions, a description of the
impact on PSD areas and nonattainment areas, and all information and
forms required by MDE regulations for permits to construct and
operating permits under COMAR 26.11. Further, COMAR 20.79.01 contains
additional requirements for electric generating stations applying for
CPCNs including requirements for when modifications need CPCNs.
EPA disagrees with the Commenter's claim that the Maryland SIP
revision does not meet the requirements of 40 CFR 51.166. EPA believes
the revision meets 40 CFR 51.166 through the statutory and regulatory
requirements identified above. As previously discussed, COMAR
20.79.03.02 requires CPCN applicants to identify relevant requirements
of the CAA. Section 7-208(f) requires inclusion of federal
environmental laws and standards identified by MDE which is the
Maryland environmental agency which implements PSD and NSR as well as
all requirements of the CAA for all sources in Maryland except electric
generating
[[Page 6966]]
stations. Because the Maryland SIP as implemented through MDE requires
sources to apply BACT or Lowest Achievable Emissions Rate at COMAR
26.11.06.14 and 26.11.17, because CPCN applicants identify requirements
of the CAA needed for construction or modification projects, and
because the emissions standards and standards of performance under 40
CFR Parts 60 and 61 would be identified by MDE through section 7-
208(f), EPA believes the Maryland SIP revision meets the requirements
of 40 CFR 51.166 as specifically identified by the Commenter, except as
discussed below regarding 40 CFR 51.161(b)(1) and 51.166(q)(1)
(relating to availability of permit documents and completeness
determinations).
EPA believes that the statutory provisions in sections 7-205, 7-
207, and 7-208 and the regulatory provisions in COMAR 20.79 contain the
required and necessary permits program for PSD and NSR as required in
sections 110(a)(2)(C) and 165(a)(2) of the CAA, 42 U.S.C. sections
7410(a)(2)(C) and 7475(a)(2), and by 40 CFR 51.166. The Maryland
provisions included in the SIP revision require CPCNs prior to
construction or modification of electric generating stations. See
sections 7-205, 7-207, and 7-208. In addition, section 7-208(f)
specifically requires the PSC to include in CPCNs federal environmental
requirements identified by MDE. MDE implements the SIP approved PSD and
NSR permit program for sources other than electric generating stations
in Maryland through COMAR 26.11.06.14 and 26.11.17.
Comment 2: The Commenter asserts the proposed revisions to the
Maryland SIP contain a provision which allows the PSC authority to
waive CAA requirements in COMAR 20.79. See COMAR 20.79.01.07. The
Commenter asserts that the CAA requires a SIP to unambiguously require
an applicant for a CPCN to comply with NSR requirements such as BACT.
The Commenter asserts that the PSC has ``extremely broad authority to
waive or modify any of the regulatory provisions in Title 20,
Subchapter 79, which governs the CPCN application process.'' The
Commenter asserts that the letter submitted by the Secretary of MDE to
the Regional Administrator of EPA Region III on July 15, 2011 stating
that MDE would ensure that the PSC does not issue waivers or
modifications not in compliance with the CAA and federal regulations
was not sufficient to serve as a binding requirement on the state to
ensure CPCN applicants comply with NSR requirements. The Commenter
asserts that section 7-208(f) is insufficient to show that NSR
requirements will be included in all CPCNs because section 7-208
``appears to apply only to the construction of an EGU when either (1)
associated overhead transmission lines designed to carry a voltage in
excess of 69,000 volts are also being constructed; or (2) the entity
constructing the EGU is exercising the right of condemnation in
connection therewith.'' See section 7-208(a).
Response 2: EPA notes that in a December 20, 2011 letter from
Robert M. Summers, Secretary of MDE, to Shawn M. Garvin, Regional
Administrator, EPA Region III, MDE officially withdrew COMAR
20.79.01.07 from MDE's proposal for inclusion in the Maryland SIP. In
taking final action on Maryland's proposed SIP revision, EPA is acting
on the remaining statutes and regulations submitted by Maryland.
Therefore, EPA's limited approval of the PSC permitting program for
electric generating stations does not include COMAR 20.79.01.07 and
that provision is not included in the Maryland SIP.
Nevertheless, EPA disagrees with the Commenter in general on the
waiver issue and believes the Letter from Robert M. Summers, Secretary
of MDE, to Shawn M. Garvin, Regional Administrator, EPA Region III
(July 15, 2011) provides assurances that MDE will ensure that its
sister Maryland agency, the PSC, will include all necessary PSD and NSR
requirements as required by section 7-208(f). EPA believes that the
PSC's waiver authority in COMAR 20.79.01.07 is clearly restricted by
the statutory restraint on the PSC's CPCN authority in section 7-208(f)
which provides that the PSC shall include federal environmental laws
and standards identified by MDE in CPCNs. This statutory restraint is
clearly evident from the plain language of the statute. The July 15,
2011 Letter from Robert M. Summers to EPA confirms the statutory
limitation on the PSC's waiver authority. EPA has given considerable
weight to the Summers' July 15, 2011 letter because MDE has expertise
in interpreting Maryland law. Presently, EPA has no reason to believe
the PSC will exercise its waiver authority to issue CPCN's without
environmental requirements identified by MDE contrary to section 7-
208(f). In addition, as of December 20, 2011, the PSC's waiver
authority in COMAR 20.79.01.07 was removed from Maryland's proposed SIP
revision and is therefore not included in EPA's limited approval of the
Maryland permitting program for electric generating stations.
Therefore, EPA believes the Maryland SIP revision meets the
requirements of the CAA for the limited approval.
Additionally, EPA disagrees with the Commenter that section 7-208
does not apply to the construction and modification of all electric
generating stations in Maryland. EPA believes the Commenter's assertion
is contrary to established Maryland case law. Section 7-207 was
originally codified as Maryland Ann. Code, Article 78, section 54A
(1968), and section 7-208 was previously codified as Maryland Ann.
Code, Article 78, section 54B (1971). In Baltimore Gas & Electric Co.
v. Dept. of Health & Mental Hygiene, 284 Md. 216, 225-26 (1979), the
Maryland Court of Appeals interpreted Maryland Ann. Code, Article 78,
sections 54A and 54B as providing a comprehensive plan for the erection
of new power plants. The Maryland Court of Appeals stated section 54A
prohibited construction of a generating station or overhead
transmission line without first obtaining a CPCN and also found that
section 54B (the predecessor of Md. Ann. Code, Public Utilities Co.
section 7-208) simply provided the procedures for obtaining a CPCN
under section 54A (now codified as section 7-207). Id. Likewise, today,
section 7-207 requires CPCNs prior to construction of electric
generating stations, and section 7-208 provides the detailed
requirements for those CPCNs.
Further, COMAR 20.79.01.02(B)(4) clearly confirms that CPCNs issued
for modification projects would be CPCNs issued pursuant to
requirements in sections 7-207 and 7-208. Because Maryland case law
found that Maryland Ann. Code, Article 78, sections 54A and 54B (now
codified as sections 7-207 and 7-208) apply to construction of
electrical generating stations or transmission lines and because the
Maryland regulations included in the SIP revision state that section 7-
208 applies also to modifications, EPA does not believe the Commenter's
assertion is valid or a correct interpretation of Maryland law.
Comment 3: The Commenter asserts the proposed Maryland SIP
revisions do not meet minimum standards for public participation set
forth in the CAA and do not protect the public's right to review and
comment on a draft CPCN. The Commenter also states the PSC does not
allow for sufficient time for response to public comments. The
Commenter asserts the proposed SIP revision does not contain a formal
process for ensuring the PSC responds to comments and asserts the
letter from H. Robert Erwin, Jr., General Counsel, PSC, to Robert M.
Summers, Secretary, MDE (January 25, 2011) is inadequate to
[[Page 6967]]
establish an independent obligation under the SIP on the PSC to respond
to comments during the CPCN permitting process. The Commenter asserts
that the CAA requires a public hearing and an opportunity for public
comment during the NSR permit process and that the permitting agency
must make available to the public information submitted by the owner or
operator of the applicant as well as the permit agency's analysis of
the effect on air quality and the draft approval in at least one
location. See 40 CFR 51.161(a), 51.161(b), and 51.166(q). The Commenter
states the SIP must provide at least 30 days for public comments. 40
CFR 51.161(b)(2). The Commenter asserts that the Md. Code Ann., Pub.
Util. Cos. section 7-207(d) and related regulations do not meet these
requirements.
Response 3: EPA agrees with the Commenter that the CAA does require
public participation in NSR permitting, including the right to review
documents. However, EPA disagrees with the Commenter regarding the
proposed Maryland SIP revision because EPA believes the Maryland SIP
revision meets the requirements of the CAA for public participation
with the exception of the requirement for the SIP to require the
permitting agency to make available to the public in at least one
location information submitted by the owner or operator of the
applicant as well as the permit agency's analysis of the effect on air
quality and the draft approval. See 40 CFR 51.161(a) and (b)(1).
Sections 7-207(c) and (d) and 7-208(d) contain the CAA's public
participation requirements for SIPs. As discussed above, sections 7-207
and 7-208 apply to CPCNs for construction as well as for modification
of electric generating stations. Section 7-207(c) and (d) require the
PSC to provide notice of an application for a CPCN to all interested
persons, to provide an opportunity for public comment, and to hold a
public hearing on the CPCN application. Section 7-207(d) also requires
weekly notice of the public hearing and opportunity for comment in a
newspaper of general circulation in the four weeks prior to a hearing.
Section 7-208(d) requires the PSC to provide notice to all interested
persons upon receipt of an application for a CPCN and to hold a public
hearing as required by section 7-207 upon publication of proper notice.
However, EPA agrees with the Commenter that a SIP must require the
permitting agency to make available to the public in at least one
location information submitted by the permit applicant as well as the
permit agency's analysis of the effect on air quality and the draft
approval. See 40 CFR 51.161(a) and (b)(1). As explained in this
rulemaking, EPA is granting limited approval to the Maryland SIP
revision until such time as MDE submits a statutory or regulatory
requirement that meets the requirements of 40 CFR 51.161(a) and (b)(1).
EPA is granting this limited approval to the Maryland SIP revision
because EPA believes the PSC in practice is providing the public with
full access to the public information submitted by a CPCN applicant as
well as the PSC's and MDE's analysis of the effect on air quality from
an application. All public records relevant to a CPCN application and
the PSC's official actions on those applications are available to the
public for review and download through access to the PSC's publicly
available Web page at https://www.psc.state.md.us/. The purpose of
providing an opportunity for public review is served by this method of
availability such that EPA is granting a limited approval until the PSC
and MDE include such a requirement in a request for SIP revision.
In addition, we gain additional assurance that the public will have
available for inspection information submitted by a CPCN applicant and
associated PSC analyses through the PSC's statutory obligation to
comply with the Maryland Public Information Act, Md. Code Ann., State
Government sections 10-611 to 10-630. The Maryland Public Information
Act applies to all branches of the Maryland state government and
provides persons the right to review the available records that are
disclosable by the State and the right to obtain copies of those
records. This statute provides that all persons are entitled to access
to information about the affairs of government and the official acts of
public officials and employees. See Maryland Public Information Act,
section 10-612(a). The Maryland Public Information Act permits persons
to inspect public records at any reasonable time within thirty days of
a request and provides a process for persons to challenge the
withholding of public documents. See Maryland Public Information Act,
sections 10-614 and 10-623.
EPA believes these statutory obligations as well as the practice of
making documents publicly available over the PSC's Web page meet the
intent of the requirements for SIPs in the CAA and in the regulations
at 40 CFR 51.161 and 51.166. Hence, EPA is granting limited approval to
this SIP revision until such time as Maryland submits a statutory or
regulatory requirement meeting 40 CFR 51.161(a) and (b)(1).
The Commenter also addressed the PSC's obligations to respond to
public comments. In reviewing SIPs submitted for approval, EPA must
follow the requirements in section 110 of the CAA and in 40 CFR 51.161
and 51.166. The Maryland SIP revision meets these requirements. As
discussed above, EPA believes the Maryland SIP revision provides for
public hearings for CPCNs and an opportunity for public comment as
required by section 165(a)(2) of the CAA and 40 CFR 51.161. The PSC in
its practice makes available to the public all information including
the CPCN application as required by 40 CFR 51.161(a) and (b) and
51.166(q) through complying with Md. Code Ann., Public Utilities Cos.
sections 7-207 and 7-208 and complying with its statutory mandate in
the Maryland Public Information Law. In addition, the PSC provides
further public access to documents relevant to CPCN obligations via its
publically-available docket on the PSC's Web site. While the Maryland
Public Information Law and the PSC's Web site are not included in the
SIP revision, EPA believes that the PSC is obligated to act in
accordance with these obligations and that the PSC's practice in using
the Web site strengthens public participation.
If these public access provisions and policies were to be repealed
or substantially changed, EPA would reevaluate the limited approval of
the SIP revision.
EPA reviews SIPs for their compliance with requirements in the CAA
and in the implementing regulations. EPA agrees with the Commenter that
responding to comments is essential to ensuring adequate public
participation. However, EPA disagrees with the Commenter that the
Maryland provisions for electric generating stations are not SIP
approvable. EPA has previously stated that adequate public
participation and comment requires air permitting agencies to address
and respond to public comment. See In the Matter of Onyx Environmental
Services, Petition V-2005-1 at 7 (February 1, 2006) (citing Home Box
Office v. FCC, 567 F.2d 9, 35 (DC Cir. 1977) (stating ``the opportunity
to comment is meaningless unless the agency responds to significant
points raised by the public''). See also In the Matter of Citgo
Refining and Chemicals Co. L.P., Petition VI-2007-01 at 7 (May 28,
2009) (stating permitting authorities have a responsibility to respond
to significant comments); In the Matter of Kerr-McGee Gathering, LLC,
Petition VIII-2007 at 4; In the Matter of Wheelabrator, Baltimore L.P.,
Permit 24-510-01-886 at 7 (April 14, 2010).
[[Page 6968]]
EPA believes an essential correlative in taking public comment on
permits is responding to those comments such that an adequate record of
the permit issuer's rationale is created. Responding to public comments
ensures meaningful public participation in permitting as intended by
the Clean Air Act.
In response to EPA's concerns regarding the PSC's responding to
comments on CPCN applications, the General Counsel for the PSC did
state in his January 25, 2011 letter to EPA referred to previously that
interested persons would be able to raise to a PSC Hearing Examiner,
during a prehearing scheduling conference which is part of the CPCN
review process, any failure by the PSC to respond to public comments
and the need for adequate time for the PSC to respond to comments in a
scheduling order. See Robert Erwin's January 25, 2011 letter to MDE. In
addition, the PSC's General Counsel stated that the failure to respond
to comments could be brought to the PSC's attention before a CPCN
becomes final during the CPCN approval hearing process. Id. EPA
believes the commitment to respond to comments from the PSC's General
Counsel as evidenced in the General Counsel's January 25, 2011 letter
satisfies EPA's concerns that the PSC will respond to public comments
on CPCN applications. EPA believes the Maryland SIP revision provides
for full public participation as required by sections 110 and 165 of
the CAA and its implementing regulations at 40 CFR 51.161 and 51.166
(with the exception of providing public access to documents in one
location as discussed above). See id.
Comment 4: Finally, the Commenter asserts that the proposed
Maryland SIP revision does not contain a requirement that the permit
reviewing authority (the PSC) shall notify all permit applicants within
a specified time period as to the completeness of the permit
application or any deficiency in the application as required in 40 CFR
51.166(q)(1).
Response 4: EPA agrees with the Commenter that the Maryland SIP
revision does not formally contain a requirement directly meeting 40
CFR 51.166(q)(1). EPA is granting limited approval to the PSC
permitting program in the Maryland SIP until Maryland submits a
regulation meeting 40 CFR 51.166(q)(1) (as well as 40 CFR 51.161(a) and
(b)(1) as discussed previously). However, EPA has granted limited
approval because EPA is satisfied that the PSC is meeting this
requirement in practice. EPA believes the revised Maryland SIP as
implemented by the PSC will appropriately address CPCN completeness
determinations. According to 40 CFR 51.166(q)(1), a SIP shall provide
that the ``reviewing authority shall notify all applicants within a
specified time period as to the completeness of the application or any
deficiency in the application or information submitted.'' EPA believes
the General Counsel's January 25, 2011 letter addresses this issue. See
Robert Erwin's January 25, 2011 letter to MDE. The PSC's General
Counsel stated in the January 25, 2011 letter that parties should raise
the issue of completeness determinations with the PSC Hearing Examiner
at the Prehearing Scheduling Conference which is held during the CPCN
application review process. The General Counsel stated that the PSC's
Hearing Examiner for each CPCN application would hear argument and make
a determination as to completeness of applications and subsequently
either order an incomplete CPCN application be supplemented or make a
finding on the record that a CPCN application was complete. See id. We
believe the PSC provides adequate opportunities during the CPCN
application process for parties to raise the issue of incomplete CPCN
applications.
In addition, the statutory and regulatory provisions in the
proposed Maryland SIP revision support EPA's belief that the PSC will
act on completeness determinations. Pursuant to section 7-205(d), the
PSC must render a decision on a CPCN application within 150 days of the
filing of the CPCN application. See Md. Code Ann., Public Util. Cos.
section 7-205(d). In addition, section 7-207(d) provides the
requirements for the PSC to hold public hearings on CPCN applications,
and section 7-208(e) follows along with the requirements in section 7-
207(d) by requiring the PSC to grant or deny CPCN applications within
90 days of the conclusion of the hearings on the CPCN applications.
Finally, the PSC's implementing regulations at COMAR 20.79.02.03,
require the PSC to impose a schedule of procedural dates to ensure
timely completion of the CPCN application process. Reading these
statutory and regulatory provisions together with the PSC General
Counsel's January 25, 2011 letter, EPA believes the Maryland SIP
revision together with the PSC's implementation as described above
satisfies the intent of 40 CFR 51.166(q)(1) sufficient for EPA to
provide limited approval to the Maryland SIP revision until Maryland
submits a regulation from the PSC for SIP approval formally addressing
the requirements of 40 CFR 51.166(q)(1).
Furthermore, EPA believes the requirements of 40 CFR 51.166(q)(1)
are intended to protect the interests of permit applicants in receiving
timely review of permit applications. EPA does not believe that the
Commenter is adversely affected by the PSC's failure to do a
completeness determination on a particular CPCN. EPA has no reason to
believe that the PSC is not conducting completeness determinations as
discussed by the PSC's General Counsel and has received no adverse
comment on this issue from the regulated and impacted community of
electric generating stations.
Finally, EPA notes that the Commenter included additional
statements in its Comments relating to CPCNs issued previously by the
PSC and the federal enforceability of those CPCNs. To the extent that
these comments do not relate to the Maryland SIP revision and are not
relevant to EPA's limited approval of the SIP revision, EPA is not
responding to those Comments here.
V. Final Action
EPA is granting limited approval in accordance with section 110(k)
of the CAA, 42 U.S.C. section 7410(k), of MDE's May 13, 2011 SIP
submission (11-01), as amended on December 20, 2011 with the
removal of COMAR 20.79.01.07, because the submission as amended
strengthens Maryland's SIP. When the PSC adopts amended regulations
which meet the requirements of 40 CFR 51.161(a) and (b)(1) and
51.166(q)(1), MDE may request full SIP approval of the permitting
program for construction and modification of electric generating
stations in Maryland.
V. Statutory and Executive Order Reviews
A. General Requirements
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA 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 CAA. 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
[[Page 6969]]
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 CAA; 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 CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by April 10, 2012. 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 preconstruction requirements for Electric
Generating Stations in Maryland 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, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: January 31, 2012.
W.C. Early,
Acting, Regional Administrator, Region III.
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:
0
a. Revising the heading of the table.
0
b. Revising the existing entries for COMAR 26.11.02.09 and 26.11.02.10.
0
c. Adding entries for COMAR 20.79.01, 20.79.02 and 20.79.03 in
numerical order after the existing entry for COMAR 03.03.06.06.
0
d. Adding new entries for ``Public Utility Companies Article of the
Annotated Code of Maryland'' at the end of the table.
The amendments read as follows:
Sec. 52.1070 Identification of plan.
* * * * *
(c)* * *
EPA-Approved Regulations, Technical Memoranda, and Statutes in the Maryland SIP
----------------------------------------------------------------------------------------------------------------
Additional
Code of Maryland administrative State explanation/
regulations (COMAR) citation Title/subject effective date EPA approval date citation at 40 CFR
52.1100
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
26.11.02 Permits, Approvals, and Registrations
----------------------------------------------------------------------------------------------------------------
26.11.02.09...................... Sources Subject to 11/16/09 2/10/12 [Insert Revised
Permits to page number where 26.11.02.09A(1),
Construct and the document (2); limited
Approvals. begins]. approval.
26.11.02.10...................... Sources Exempt from 11/16/09 2/10/12 [Insert Revised
Permits to page number where 26.11.02.10A;
Construct and the document limited approval.
Approvals. begins].
----------------------------------------------------------------------------------------------------------------
[[Page 6970]]
* * * * * * *
----------------------------------------------------------------------------------------------------------------
20.79.01 Applications Concerning the Construction or Modification of Generating Stations and Overhead
Transmission Lines--General
----------------------------------------------------------------------------------------------------------------
20.79.01.01A, .01C, and .01D..... Scope.............. 12/28/09 2/10/12 [Insert Added; limited
page number where approval.
the document
begins].
20.79.01.02A and .02B(1) through Definitions........ 12/28/09 2/10/12 [Insert Added; limited
(13), (14)(a), (15), (16), and page number where approval.
(18) through (20). the document
begins].
20.79.01.06...................... Modifications to 12/28/09 2/10/12 [Insert Added; limited
Facilities at a page number where approval.
Power Plant. the document
begins].
----------------------------------------------------------------------------------------------------------------
20.79.02 Applications Concerning the Construction or Modification of Generating Stations and Overhead
Transmission Lines--Administrative Provisions
----------------------------------------------------------------------------------------------------------------
20.79.02.01...................... Form of Application 2/10/97 2/10/12 [Insert Added; limited
page number where approval.
the document
begins].
20.79.02.02...................... Distribution of 2/10/97; 2/10/12 [Insert Added; limited
Application. 11/8/04 page number where approval.
the document
begins].
20.79.02.03...................... Proceedings on the 2/10/97; 2/10/12 [Insert Added; Limited
Application. 11/8/04 page number where approval.
the document
begins].
----------------------------------------------------------------------------------------------------------------
20.79.03 Applications Concerning the Construction or Modification of Generating Stations and Overhead
Transmission Lines--Details of Filing Requirements--Generating Stations
----------------------------------------------------------------------------------------------------------------
20.79.03.01...................... Description of 2/10/97; 2/10/12 [Insert Added; limited
Generating Station. 11/8/04 page number where approval.
the document
begins].
20.79.03.02A and .02B(1) and (2). Environmental 2/10/97; 2/10/12 [Insert Added; limited
Information. 11/8/04 page number where approval.
the document
begins].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Annotated Code of Maryland Title/subject State EPA approval date Additional
citation effective date explanation/
citation at 40 CFR
52.1100
----------------------------------------------------------------------------------------------------------------
Public Utility Companies Article of the Annotated Code of Maryland
----------------------------------------------------------------------------------------------------------------
Section 7-205.................... Electric Companies-- 7/01/06 2/10/12 [Insert Added; limited
Modification of page number where approval.
Power Plant. the document
begins].
Section 7-207(a), (b)(1), (c), Generating Stations 7/01/07 2/10/12 [Insert Added; limited
(d), and (e). or Transmission page number where approval.
Lines--General the document
Certification begins].
Procedure.
Section 7-207.1(a) and (e)....... Generating Stations 7/01/07 2/10/12 [Insert Added; limited
or Transmission page number where approval.
Lines--Onsite the document
Generated begins].
Electricity;
Approval Process.
Section 7-208 (a)(1), (b) through Generating Stations 7/01/01 2/10/12 [Insert Added; limited
(f), and (h)(2). or Transmission page number where approval.
Lines--Joint the document
Construction of begins].
Station and
Associated Lines.
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2012-2984 Filed 2-9-12; 8:45 am]
BILLING CODE 6560-50-P
