[Federal Register Volume 61, Number 129 (Wednesday, July 3, 1996)]
[Rules and Regulations]
[Pages 34733-34739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17020]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5530-4]
Title V Clean Air Act Final Interim Approval of Operating Permits
Program; Maryland
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final Interim Approval.
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SUMMARY: EPA is promulgating interim approval of the operating permits
program submitted by Maryland for the purpose of complying with federal
requirements for an approvable program to issue operating permits to
all major stationary sources, and to certain other sources. Maryland
has substantially, but not fully, met the requirements for an operating
permits program set out in title V of the Clean Air Act (CAA) and 40
CFR part 70. Upon the effective date of this program approval, those
sources must comply with Maryland's regulatory requirements to submit
an application for an operating permit pursuant to the state's
submittal schedule.
EFFECTIVE DATE: August 2, 1996.
ADDRESSES: Copies of Maryland's submittal and other supporting
information used in developing the final interim approval are available
for inspection during normal business hours at the following location:
Air, Radiation, and Toxics Division, U.S. Environmental Protection
Agency, Region III, 841 Chestnut Building, Philadelphia, PA 19107.
FOR FURTHER INFORMATION CONTACT: Lisa M. Donahue, (3AT23), Air,
Radiation and Toxics Division, U.S. Environmental Protection Agency,
Region III, 841 Chestnut Building, Philadelphia, PA 19107, (215) 566-
2062, donahue.lisa@epamail.epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Title V of the 1990 CAA Amendments (sections 501-507 of CAA), and
implementing regulations at 40 Code of Federal Regulations (CFR) part
70 require that states seeking to administer a title V operating
permits program develop and submit a program to EPA by November 15,
1993, and that EPA act to approve or disapprove each program within 1
year after receiving the submittal. EPA's program review occurs
pursuant to section 502 of the Act and the part 70 regulations, which
together outline criteria for approval or disapproval of an operating
permits program submittal. Where a program substantially, but not
fully, meets the requirements of part 70, EPA may grant the program
interim approval for a period of up to 2 years. If EPA has not fully
approved a program by November 15, 1995, or by the expiration of the
interim approval period, it must establish and implement a federal
program.
EPA compiled a technical support document (TSD), associated with
the proposal, which contains a detailed analysis of the operating
permits program. On October 30, 1995, EPA proposed interim approval of
the operating permits program for Maryland, and requested comments on
that proposal. (See 60 FR 55231). In this document EPA is taking final
action to promulgate interim approval of the operating permits program
for Maryland.
II. Analysis of State Submission
On May 9, 1995, Maryland submitted an operating permits program to
satisfy the requirements of the CAA and 40 CFR part 70 and the
submittal was found to be administratively complete pursuant to 40 CFR
70.4(e)(1). The submittal was supplemented by additional material on
June 9, 1995. EPA reviewed the program against the criteria for
approval in section 502 of the CAA and the part 70 regulations. EPA
determined, as fully described in the notice of proposed interim
approval of the state's operating permits program (see 60 FR 55231
(October 30, 1995)) and the TSD for this action, that Maryland's
operating permits program substantially meets the requirements of the
CAA and part 70.
III. Response to Public Comments
EPA received several comments during the public comment period.
Additional comments to clarify comments submitted during the comment
period were submitted after the expiration of the public comment
period. These comments and EPA's responses are grouped into four
categories. All comments are contained
[[Page 34734]]
in the docket at the address noted in the ADDRESSES section above.
A. Judicial Standing
Comment 1: One commenter expressed the belief that EPA was
overstepping its authority in proposing that Maryland amend the
Maryland Environmental Standing Act (MESA) to afford non-state
residents and organizations the same standing rights as other
``persons'' as defined in MESA. Citing the 10th amendment to the U.S.
Constitution, the commenter argues that the regulation of state courts
is clearly a right reserved to the states and that the Maryland common
law ``specific interest or property right'' test of harm is a
reasonable criteria for determining standing in a state court that EPA
should not seek to alter.
EPA Response to comment 1: EPA does not agree that Maryland's
common law standing requirements fully meet the standards of title V.
Moreover, EPA does not believe that section 502(b)(6) of the CAA, and
the requirements of 40 CFR 70.4(b)(3)(x) regarding the necessary
opportunity for judicial review of permit actions represent an
unconstitutional invasion of state sovereignty or a coercion of state
legislative or regulatory action since, under title V, states are
required to amend their standing laws only if they wish to obtain EPA
approval under the CAA. If a state elects not to participate in
implementing title V, it is free to make that choice. EPA's position
has been upheld recently at both the Federal District Court and
Appellate Court levels. See, State of Missouri and Mel Carnahan v.
U.S., et al, No. 4:94CV01288 ELF, 1996 U.S. Dist. Lexis 3215 (E.D. Mo.
Feb. 5, 1996). See also, Commonwealth of Virginia v. Carol Browner, et
al., No. 95-1052, 1996 U.S. App. Lexis 5334 (4th Cir. Mar. 26, 1996).
Comment 2: Two commenters, including the Maryland Department of the
Environment (MDE), expressed disagreement with EPA's evaluation that
title V standing criteria must meet the minimum requirements of Article
III of the U.S. Constitution. One of these commenters disagreed with
EPA's conclusion that MESA consequently provides an inadequate
opportunity for judicial review of part 70 permits.
EPA Response to comment 2: Section 502(b)(6) states that every
approvable permit program must provide the applicant and ``any person
who participated in the public comment process'' with the opportunity
for judicial review of the final permit action in state court. The same
opportunity must also be afforded to any other person who could obtain
judicial review of the action under any applicable state law. EPA
believes that for a state title V operating permits program to be
approved by EPA, that program must provide access to judicial review to
any party who participated in the public comment process and who at a
minimum meets the threshold standing requirements of Article III of the
U.S. Constitution.
EPA's interpretation is consistent with the language, structure,
and legislative history of the Act, under which it is clear that
affected members of the public must have an opportunity for judicial
review of permit actions to ensure an adequate and meaningful
opportunity for public participation in the permit process. See,
Chafee-Baucus Statement of Senate Managers, S. 1630, the Clean Air Act
Amendments of 1990, reprinted in 136 Cong. Rec. S169941 (daily ed.
October 27, 1990). The legislative history, together with the expansive
language of section 502(b)(6), demonstrates the clear intent of the
Congress to provide citizens a broad opportunity for judicial review.
EPA's position regarding the Article III standard recently was
affirmed by the U.S. Court of Appeals for the Fourth Circuit in
Commonwealth of Virginia v. Carol M. Browner, et al., No. 95-1052, 1996
U.S. App. Lexis 5334 (4th Cir. Mar. 26, 1996). The Fourth Circuit Court
of Appeals therein held that:
Here, EPA resolved the slight tension within Sec. 502(b)(6) by
interpreting the section to require that states, at a minimum,
extend judicial review rights to participants in the state public
comment process who satisfy the standard for Article III standing.
This resolution is both authorized by Congress and reasonable, and
therefore we must reject Virginia's alternative interpretation.
Commonwealth v. Browner, 1996 U.S. App. Lexis 5334 at 25-26.
Certain parties, including non-state residents and organizations
not doing business in Maryland, do not fall within MESA's definition of
``person'' and cannot take advantage of the standing provisions of
MESA. These parties are required to establish standing for judicial
review under the Maryland common law of standing. While Maryland's
program submittal provides adequate standing for state residents and
organizations doing business in Maryland and thus substantially meets
the standing requirements of title V of the CAA and 40 CFR part 70, EPA
has concluded that Maryland standing requirements are somewhat less
favorable than the standing requirements of Article III with respect to
non-state residents and organizations not doing business in Maryland.
In order to fully meet the standing requirements for judicial review
required by CAA section 502(b)(6) and 40 CFR 70.4(b)(3)(x), MESA must
be amended to accord such non-state residents and organizations the
same standing to challenge part 70 permit decisions as other
``persons'' defined in MESA, or, in the alternative, other appropriate
legislative action must be taken to ensure that standing requirements
for such organizations are not more restrictive than the minimum
requirements of Article III of the U.S. Constitution as they apply to
federal courts.
Comment 3: One commenter argues that judicial review under the
Maryland Administrative Processes Act (APA) is unavailable in Maryland
for a part 70 permit and the scope of review under MESA is much
narrower than that afforded under the APA. The commenter further
asserts that MESA does not abrogate the existing requirement of
exhaustion of remedies, expresses due process concerns inherent under
Maryland APA standing principles and questions whether MESA can serve
as the ``primary avenue'' for third parties to obtain judicial review
of part 70 permits issued by MDE. A second commenter generally asserted
the belief that Maryland's permit program effectively precludes citizen
suits under all circumstances and is deficient in its citizen suit
``standing'' provisions.
EPA Response to comment 3: The Maryland Attorney General
acknowledges that in order to obtain judicial review under the APA, a
party must show that the party has been ``aggrieved''. The Maryland
Attorney General recognizes that MESA cannot be used for this purpose
and that MESA does not provide standing for a direct judicial review of
permit actions under Maryland's APA. See, Medical Waste Associates,
Inc. v. Maryland Waste Coalition, Inc., 327 Md. 596, 612 A.2d 241
(1992). Citing Medical Waste, the Maryland Attorney General concludes
that MESA cannot be used by a plaintiff organization to create standing
rights that the organization otherwise would not have to obtain
judicial review of a contested case decision under the APA. However,
the Maryland Attorney General concludes that the decision in Medical
Waste has relevance to the scope of review available under MESA only
with respect to MDE permits that are subject to contested case
hearings. The Maryland Attorney General states that part 70 operating
permits will not be subject to contested case proceedings and that
Medical Waste should not be seen as controlling with respect to part
[[Page 34735]]
70 permits, especially where MDE has specified that MESA is the
appropriate mechanism for obtaining judicial review of such permits.
The Maryland Attorney General acknowledges that the nature and
scope of review that is available with respect to part 70 operating
permits will depend on the issues raised by the petitioner and on the
type of action brought. However, the Maryland Attorney General notes
that the Maryland Court of Appeals, in discussing the type of review
available in an adjudicative type of permit review proceeding, has
stated that:
Consequently, such an administrative proceeding, even if not
subject to judicial review under the APA, would be subject to
judicial review, of essentially the same scope, in an action for
mandamus, certiorari, injunction, or declaratory judgment.
Medical Waste, 327 Md. at 610.
The Maryland Attorney General further asserts that, in the absence
of an express provision for review, actions for declaratory or
injunctive relief, as well as mandamus, are available to persons
challenging state permit issuance. The Maryland Attorney General notes
that a reviewing court essentially may provide the same remedies that a
person could obtain from judicial review under the APA and that MESA,
therefore, should provide the basis for judicial review of any part 70
permit in which MDE fails correctly to apply applicable CAA
requirements that pertain to the source covered under the permit. As to
the issue of exhaustion of remedies, neither title V nor 40 CFR part 70
prohibit an administrative remedy exhaustion requirement.
On the basis of the Maryland Attorney General's Opinion, it appears
that review of essentially equivalent scope as direct judicial review
is available in administrative proceedings such as permit issuances or
denials, even if not subject to direct review under the Maryland APA.
Nevertheless, Maryland could avoid the risk of any future Maryland
judicial decision interpreting MESA or Maryland's common law of
standing in such a manner as potentially to compromise Maryland's part
70 approval status if Maryland were to amend its state APA to provide
directly for the opportunity for judicial review of permit actions in
state court, consistent with CAA section 502(b)(6) and 40 CFR
70.4(b)(3)(x).
Comment 4: One commenter opines that Maryland part 70 regulations
should be able to provide expressly for standing consistent with
existing Federal law through an adoption of the Federal definition of
standing, as Maryland has done with state regulations promulgated under
the Federal Surface Mining Control and Reclamation Act.
EPA Response to comment 4: EPA believes that the commenter may have
identified one of several potential alternatives available to Maryland
to meet fully the requirements of CAA section 502(b)(6) and 40 CFR
70.4(b)(3)(x). However, EPA does not believe that Maryland must select
this particular alternative in order to maintain part 70 approval
status.
Comment 5: One commenter notes that the Maryland APA requirement
that a party be ``aggrieved'' mirrors general common law standing
principles applicable to judicial review of administrative decisions,
but asserts that Maryland imposes a ``special interest'' requirement
whereby a party ``ordinarily must'' show that his personal property
rights are specially affected in a way different from the general
public in order to have common law standing. The commenter states that
Maryland's ``special interest'' requirement differs significantly from
the ``general interest'' requirement under the Federal rule and that
the Court of Special Appeals of Maryland has virtually excluded anyone
but an adjoining property holder from meeting the ``special harm''
requirement of standing.
EPA Response to comment 5: No Maryland appellate decision has
articulated those ``interests'' which are sufficient to establish
standing on the part of an individual in an environmental permit case.
In the event that a Maryland judicial decision having precedential
effect is issued in the future which makes Maryland common law standing
requirements more stringent than Article III standing requirements, EPA
will take appropriate action under 40 CFR 70.10(c) (``Criteria for
Withdrawal of State Programs'').
Comment 6: One commenter asserts that MESA places major limitations
upon when and where a private citizen may initiate an action and that
judicial application of MESA renders nugatory MESA's supposedly broad
standing requirements.
EPA Response to comment 6: While it is clear that MESA confers
standing on any individual citizen residing ``in the county or
Baltimore City where the action is brought'', no reported Maryland
appellate decision has interpreted the additional standard set forth in
MESA which confers standing on any individual citizen able to
``demonstrate that the alleged condition, activity, or failure
complained of affects the environment where he resides.'' In the event
that a Maryland judicial decision having precedential effect is issued
in the future which makes MESA's standing requirements more stringent
than Article III standing requirements, EPA will take appropriate
action under 40 CFR 70.10(c).
Comment 7: One commenter notes that organizational standing under
Maryland common law is significantly more restrictive than under
Federal law in that the organization's members must meet the ``special
harm'' test and the organization itself must have its own ``property''
interest, separate and distinct from that of its members and the public
at large.
EPA Response to comment 7: EPA has identified the commenter's
concerns as an interim approval issue and agrees that Maryland standing
requirements are somewhat less favorable than the standing requirements
of Article III with respect to organizations not doing business in
Maryland. See, 60 FR 55231, 55233. The federal courts interpret Article
III to provide standing for organizations in actions brought to protect
the interests of their members, provided certain conditions are met.
See, Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F.Supp.
440 (D. Md. 1985). Under the Maryland common law of standing, an
organization must have an interest of its own, separate and distinct
from that of its individual members, in order to establish standing.
Medical Waste Associates, Inc. v. Maryland Waste Coalition, 327 Md. 596
(1992). However, the Maryland Attorney General notes that if at least
one plaintiff in an action for review of a permit establishes standing,
the Maryland courts will not ordinarily inquire as to whether other
plaintiffs have standing. Therefore, an organization doing business
outside of Maryland may be able to participate in a permit challenge on
behalf of its individual members if other parties having the requisite
standing also join as plaintiffs in the action.
Maryland's program submittal substantially meets the standing
requirements of title V of the CAA and 40 CFR part 70. However, in
order to meet fully the requirements of section 502(b)(6) of the CAA
and 40 CFR 70.4(b)(3)(x), MESA must be amended to accord non-state
residents and organizations not doing business in Maryland the same
standing to challenge part 70 permit decisions as other ``persons'' as
defined in MESA, or, in the alternative, other appropriate legislative
action must be taken to ensure that standing requirements for such
organizations are not more restrictive than the minimum
[[Page 34736]]
requirements of Article III of the U.S. Constitution as they apply to
federal courts.
Comment 8: One commenter questions where the Maryland Attorney
General finds support for the proposition that Maryland would recognize
a non-economic interest as sufficient for standing purposes. The
commenter considers it clear that Maryland recognizes only an
individual's ``health or property'' interest and that not one single
case allows recreational, environmental or aesthetic interests as being
sufficient to constitute the type of special interest needed to
establish standing under Maryland common law (i.e., non-MESA) standing.
EPA Response to comment 8: There are no reported cases in Maryland
that would preclude a non-economic interest (such as a recreational,
conservational or aesthetic interest) from constituting the type of
specific interest needed to establish standing under Maryland common
law. If a Maryland judicial decision having precedential effect is
issued in the future limiting the special interest required for
standing to economic interests, then the Maryland standing requirement
would become more stringent than Article III standing requirements. See
e.g., Commonwealth of Virginia v. Carol M. Browner, et al., No. 95-
1052, 1996 U.S. App. Lexis 5334 (plaintiff need not show ``pecuniary''
harm to have Article III standing; injury to health or to aesthetic,
environmental, or recreational interests will suffice). See, also,
United States v. Students Challenging Regulatory Agency Procedures
(SCRAP), 412 U.S. 669, 686-87 (1973); Sierra Club v. Morton, 405 U.S.
727, 734 (1972). EPA would then take appropriate action under 40 CFR
70.10(c).
Comment 9: One commenter asked that EPA disapprove the Maryland
part 70 Permit Program and take the first steps to institute
discretionary sanctions.
EPA Response to comment 9: Maryland's part 70 Permit Program
submittal does not meet fully the requirements of title V of the CAA
and 40 CFR part 70 and full approval by EPA is inappropriate. However,
Maryland's part 70 Permit Program submittal substantially meets the
requirements of title V of the CAA and 40 CFR part 70 and interim
approval is appropriate. During the interim approval period, which may
extend for up to 2 years, Maryland is protected from sanctions for
failure to have a fully approved title V, part 70 program. EPA may
apply discretionary sanctions, where warranted, any time after the end
of an interim approval period if Maryland has not timely submitted a
complete corrective program or EPA has disapproved a submitted
corrective program.
B. Programmatic Issues
Comment 10: A commenter disagreed with EPA's statement that any
relaxation of a compliance plan or schedule must be processed as a
significant permit modification. The commenter believes that Maryland
should be allowed discretion to process insubstantial changes to a
compliance plan or schedule as either administrative or minor permit
revisions, and cites an example. The commenter believes that it is
inappropriate to require a significant permit modification for a one
month delay in meeting a compliance milestone, when the state can
assure that the source is acting in good faith and that the delay is
beyond the source's control. The commenter believes that this provision
of the regulation (Code of Maryland Regulations (COMAR) 26.11.03.14.C)
should be approved as currently written.
EPA Response to Comment 10: EPA agrees with the comment and revises
its position, removing the requirement to revise COMAR 26.11.03.14C as
set out in the proposed interim approval notice. COMAR 26.11.03.14C
does not prohibit MDE from considering a change to a compliance plan as
a significant permit modification. Rather, it provides an additional
requirement for changes to compliance plans. Whereas sources may make
changes addressed in administrative permit amendments (see COMAR
26.11.03.15F) or minor permit modifications (with some exceptions, see
COMAR 26.11.03.16G) before MDE completes its amendment or modification,
changes to compliance plans may not be made until they have been
approved in writing. The criteria for determining the type of permit
modification that is required in any particular instance are set out at
COMAR 26.11.03.14-19. In keeping with these criteria, Maryland has the
discretion to treat ``insubstantial'' changes as administrative or
minor permit modifications, as appropriate.
Comment 11: A commenter expressed support for MDE's plan to place
fee revenues from the title V program into a segregated portion of the
Air and Radiation Management and Administration's budget. Maryland's
title V program allows surplus funds from previous years to be carried
over to the following year and used solely for the part 70 permit
program. The commenter recommended that the funds be placed in an
interest bearing account, and credited to sources, according to the
proportion of the total of all emission fees which were paid by the
source in a timely manner.
EPA Response to Comment 11: Part 70 requires that states establish
a fee schedule that results in revenues sufficient to cover the permit
program costs. Part 70 does not specify how surplus funds from one year
should be carried over to fund the next year, and does not require that
funds be placed in an interest bearing account and credited to sources.
Maryland has discretion to manage surplus funds as the state determines
is appropriate, provided that the funds are used solely for title V
purposes and in accordance with the provisions of part 70. The state is
also required under part 70.9(d) to provide periodic accounting updates
demonstrating how fee revenues are used solely to cover the costs of
implementing the title V program.
Comment 12: A commenter requested that EPA encourage Maryland to
adopt a ``trivial activities'' list and set up a process for approving
trivial activities on a case by case basis, as provided for in the
EPA's ``White Paper for Streamlined Development of Part 70 Permit
Applications.''
EPA Response to Comment 12: As discussed in the ``White Paper for
Streamlined Development Part 70 Permit Applications'', dated July 10,
1995, EPA believes that, in addition to the insignificant activity
provisions of part 70.5(c), part 70.5 allows permitting authorities to
recognize certain activities as being clearly trivial (i.e., emissions
units and activities which do not in any way implicate applicable
requirements) and that such trivial activities can be omitted from the
permit application even if not included on a list of insignificant
activities approved in a state's part 70 program. Permitting
authorities may, on a case-by-case basis and without EPA approval,
exempt additional activities which are clearly trivial. However,
additional exemptions, to the extent that the activities they cover are
not clearly trivial, still need to be approved by EPA before being
added to state lists of insignificant activities. While part 70.5 has
been interpreted to allow flexibility for the determination of trivial
activities, EPA will defer to Maryland to determine whether similar
flexibility exists under its own permit application provisions. EPA
believes that it is appropriate to have such determinations made in the
first instance at the state level as the decision of whether any
particular item should be on a state's trivial list may depend on
[[Page 34737]]
state-specific factors, such as whether the activity is subject to
state-only requirements or specific requirements of the SIP.
Comment 13: A commenter urged EPA to allow the state to provide
more time for facilities to submit permit applications. Maryland
requires facilities to submit permit applications on a staggered basis
within 4, 6 or 8 months after the effective date of EPA's approval of
the title V program. The commenter is concerned that pending
rulemakings for the title V program and monitoring requirements are
needed to determine what will be required in a title V permit
application and permit. Further, the commenter requested EPA to develop
a national standard for permit application forms, so that no one
company or state would have a greater or lesser burden in completing
its permit application.
EPA Response to Comment 13: Section 503(c) of the CAA requires that
any person required to have a permit shall submit to the permitting
authority a permit application and compliance plan not later than 12
months after the date on which the source becomes subject to the
program, or such earlier date as the permitting authority may
establish. This requirement is established by regulation at 40 CFR part
70.5(a)(1). EPA has no authority to allow states to extend the time
frame for sources to submit permit applications beyond the required 12
months. The CAA and part 70 provide states discretion to establish
earlier due dates for sources to submit permit applications. Many
states, including Maryland, have done so, particularly so that they
will be able to meet the requirement for issuing one-third of permits
within the first year of title V program approval. EPA supports states'
decisions to establish earlier due dates for permit applications and
believes that Maryland's approach is reasonable.
EPA's pending rulemakings pertaining to the title V program and
monitoring requirements do not have an impact on the information that
sources must include in permit applications. Sources subject to
Maryland's title V program, once approved, will be subject to the
requirements for permit applications found in Maryland's regulations
(primarily COMAR 26.11.03.02, 26.11.03.03, and 26.11.03.04).
EPA does not agree that a national standardized permit application
form should be established. Part 70.5(c) requires the state to provide
a standard application form(s) and provides that the permitting
authority may use its discretion in developing application forms that
best meet program needs and administrative efficiency. Part 70.5(c)
specifies the minimum types of information that must be included in
permit applications.
C. Decision for ``Interim'' Approval
Comment 14: One general comment raised with respect to several of
the proposed interim approval issues questions why such program
deficiencies warrant interim approval status. Although this same
comment was submitted with respect to several of the proposed interim
approval issues, EPA will respond to this comment generally in this
rulemaking action.
EPA Response to comment 14: The part 70 regulations define the
minimum elements required by the CAA for approval of state operating
permit programs. Section 70.4(d) authorizes EPA to grant interim
approval in situations where a state's program substantially meets the
requirements of part 70, but is not fully approvable. In reviewing
Maryland's operating permit regulations, several instances in which the
impact of seemingly ``small'' deficiencies such as vague or awkward
language, misplaced, misreferenced or mislabeled provisions prevents
EPA from being able to determine that the requirements of part 70 are
fully met. EPA identified such deficiencies as ``interim approval
issues'' which Maryland must revise, modify or otherwise clarify to
fully meet part 70's requirements. To the extent that EPA's concerns
can be satisfied through other mechanisms, regulatory revision may not
be necessary.
Comment 15: Commenters also have questioned the propriety of EPA's
proposal to grant interim approval status to Maryland's title V Program
in light of recognized deficiencies in the Program's standing
requirements for judicial review and have previously suggested that EPA
may be applying inconsistent approval standards and an inconsistent
level of review and comment among the various state and local
jurisdictions seeking operating permit program approvals under title V
of the CAA.
EPA Response to comment 15: EPA believes that MESA provides
adequate standing for judicial review to Maryland residents and
corporations, and any partnership, organization, association or legal
entity doing business in the state, all of whom are defined as
``persons'' therein. EPA further believes that the substantial majority
of challenges to state permit actions will be brought by resident
individuals and organizations doing business within the state and who
will have standing for judicial review pursuant to MESA. EPA recognizes
that non-state residents must establish standing pursuant to Maryland
common law, which requires a ``specific interest or property right''
such that the party will suffer harm that is different in kind from
that suffered from the general public. However, there are no reported
cases in Maryland that would preclude non-economic interests such as
recreational, conservational or aesthetic interests from constituting
the type of specific interest needed for standing. In the event that a
Maryland decision having precedential effect subsequently limits the
special interest required for standing to economic interests, or
otherwise makes the Maryland standing requirements more stringent that
Article III standing requirements, EPA has previously stated its intent
to take appropriate action under 40 CFR 70.10(c). EPA also
acknowledges, as an interim approval issue, that Maryland standing
requirements are somewhat less favorable than the standing requirements
of Article III with respect to organizations not doing business in
Maryland and that Maryland must accord non-state residents and
organizations not doing business in the state the same standing rights
to challenge part 70 permit decisions as other ``persons'' as defined
in MESA. In the interim, an organization doing business outside
Maryland still may be able to participate in a permit challenge on
behalf of its individual members if it joins other plaintiffs who
already have the requisite standing in the action, as Maryland courts
will not ordinarily inquire as to whether other plaintiffs have
standing.
For these reasons, EPA believes that Maryland's program currently
provides the requisite standing for judicial review to the broad
majority of prospective plaintiffs in part 70 state permit actions and
substantially meets the requirements of part 70. EPA further believes
that Maryland's program meets each of the minimum requirements of 40
CFR 70.4(d)(3), such that interim approval should be granted to
Maryland's title V Program.
EPA has applied consistent review, comment and approval standards
among the various jurisdictions seeking approval of operating permit
programs under title V of the CAA. EPA evaluates each program
separately to determine if it meets the requirements of 40 CFR part 70
and has not proposed approval for any state operating permits program
that does not substantially meet the requirements for standing for
judicial review as required by section 502(b)(6) of the Act and 40 CFR
70.4(b)(3)(x).
[[Page 34738]]
Some commenters have questioned the consistency of EPA's review,
comment and approval standards with respect to the issue of standing
for judicial review because EPA proposes to grant interim approval
status to Maryland's title V Program after acknowledging certain
deficiencies in Maryland's program submittal. These commenters note
that EPA previously denied approval of the Commonwealth of Virginia's
Program upon finding that limitations on judicial review in Virginia
did not meet the minimum threshold standing requirements of Article
III.
On the basis of five disapproval issues, including the issue of
standing for judicial review, EPA determined that Virginia's operating
program submittal did not substantially meet the requirements of part
70 and, therefore, was not eligible for interim approval. (See 59 FR
62324 (December 5, 1994)). On the issue of standing for judicial
review, EPA took particular note that section 10.1-1318(B) of the Code
of Virginia extends the right to seek judicial review only to persons
who have suffered ``actual, threatened, or imminent injury * * * ''
where ``such injury is an invasion of an immediate, legally protected,
pecuniary and substantial interest which is concrete and particularized
* * * '' and found that the limitations on judicial review in Virginia
did not meet the minimum threshold standing requirements of Article II
of the U.S. Constitution and did not meet the minimum program approval
criteria under title V. (See 59 FR 31183, 31184 (June 17, 1994)).
The strict limitations on judicial review which are contained in
Virginia's program submittal are in sharp contrast to the comparatively
minor limitations on judicial review contained in Maryland's operating
program submittal (as described above). Because Maryland's program
submittal confers general standing privileges on all state residents
and organizations doing business in the state (i.e., the broad majority
of potential plaintiffs), and for the additional reasons explained
above, EPA believes that Maryland's program submittal substantially
meets the standing requirements of title V of the CAA and 40 CFR part
70. EPA further believes that such a finding is factually appropriate
and is consistent with applicable approval standards and prior EPA
program evaluations.
D. Part 70 Supplemental Rule
Comment 16: A commenter expressed support for EPA's supplemental
proposed rule for the title V program (See 60 FR 45530, August 31,
1995) which would provide states the flexibility to match the level of
review of permit revisions to the environmental significance of the
operational change.
EPA Response to Comment 16: This comment does not pertain to EPA's
proposed interim approval action for Maryland's title V program. EPA's
approval action for Maryland is based on 40 CFR part 70 as promulgated
on July 21, 1992. Once EPA promulgates final revisions to the part 70
program, the state will be required to amend its title V program to
reflect the changes.
Final Action: EPA is promulgating interim approval of the operating
permits program submitted by Maryland on May 9, 1995, and supplemented
on June 9, 1995. Maryland must make the changes identified in the
notice of proposed rulemaking, with the exception noted in Comment 10
above, in order to fully meet the requirements of the July 21, 1992
version of part 70 (See 60 FR 55231, October 30, 1995).
The scope of Maryland's part 70 program approved in this action
applies to all part 70 sources (as defined in the approved program)
within Maryland, except any sources of air pollution over which an
Indian Tribe has jurisdiction. See, e.g., 59 FR 55813, 55815-18 (Nov.
9, 1994). The term ``Indian Tribe'' is defined under the Act as ``any
Indian tribe, band, nation, or other organized group or community,
including any Alaska Native village, which is federally recognized as
eligible for the special programs and services provided by the United
States to Indians because of their status as Indians.'' See section
302(r) of the CAA; see also 59 FR 43956, 43962 (Aug. 25, 1994); 58 FR
54364 (Oct. 21, 1993).
This interim approval extends until August 3, 1998. During this
interim approval period, Maryland is protected from sanctions for
failure to have a fully approved title V, part 70 program, and EPA is
not obligated to promulgate, administer and enforce a federal operating
permits program in Maryland. Permits issued under a program with
interim approval have full standing with respect to part 70, and the 1-
year time period for submittal of permit applications by subject
sources begins upon the effective date of this interim approval, as
does the 3-year time period for processing the initial permit
applications.
If Maryland fails to submit a complete corrective program for full
approval by February 3, 1998, EPA will start an 18-month clock for
mandatory sanctions. If Maryland then fails to submit a corrective
program that EPA finds complete before the expiration of that 18-month
period, EPA will be required to apply one of the sanctions in section
179(b) of the Act, which will remain in effect until EPA determines
that Maryland has corrected the deficiency by submitting a complete
corrective program. Moreover, if the Administrator finds a lack of good
faith on the part of Maryland, both sanctions under section 179(b) will
apply after the expiration of the 18-month period until the
Administrator determined that Maryland had come into compliance. In any
case, if, six months after application of the first sanction, Maryland
still has not submitted a corrective program that EPA has found
complete, a second sanction will be required.
If EPA disapproves Maryland's complete corrective program, EPA will
be required to apply one of the section 179(b) sanctions on the date 18
months after the effective date of the disapproval, unless prior to the
date on which the sanction would be applied Maryland has submitted a
revised program and EPA has determined that it corrected the
deficiencies that prompted the disapproval. Moreover, if the
Administrator finds a lack of good faith on the part of Maryland, both
sanctions under section 179(b) shall apply after the expiration of the
18-month period until the Administrator determines that Maryland has
come into compliance. In all cases, if, six months after EPA applies
the first sanction, Maryland has not submitted a revised program that
EPA has determined corrects the deficiencies, a second sanction is
required.
In addition, discretionary sanctions may be applied where warranted
any time after the expiration of an interim approval period if Maryland
has not timely submitted a complete corrective program or EPA has
disapproved its submitted corrective program. Moreover, if EPA has not
granted full approval to Maryland's program by the expiration of the
interim approval period, EPA must promulgate, administer and enforce a
federal permits program for Maryland upon the date the interim approval
period expires.
Requirements for approval, specified in 40 CFR 70.4(b), encompass
the CAA's section 112(l)(5) requirements for approval of a program for
delegation of section 112 standards as promulgated by EPA as they apply
to part 70 sources. Section 112(l)(5) requires that the state's program
contain adequate authorities, adequate resources for implementation,
and an expeditious compliance schedule, which are also requirements
under part 70. Therefore, EPA is also promulgating approval under
section 112(l)(5) and 40 CFR 63.91 of Maryland's program for receiving
[[Page 34739]]
delegation of section 112 standards that are unchanged from federal
standards as promulgated. This program for delegations only applies to
sources covered by the part 70 program.
Additionally, EPA is promulgating approval of Maryland's operating
permits program, under the authority of title V and part 70 for the
purpose of implementing section 112(g) to the extent necessary during
the transition period between promulgation of the federal section
112(g) rule and adoption of any necessary state rules to implement
EPA's section 112(g) regulations. However, since this approval is for
the purpose of providing a mechanism to implement section 112(g) during
the transition period, the approval of the operating permits program
for this purpose will be without effect if EPA decides in the final
section 112(g) rule that sources are not subject to the requirements of
the rule until state regulations are adopted. Although section 112(l)
generally provides the authority for approval of state air toxics
programs, title V and section 112(g) provide authority for this limited
approval because of the direct linkage between implementation of
section 112(g) and title V. Unless the federal section 112(g) rule
establishes a specific time frame for the adoption of state rules, the
duration of this approval is limited to 18 months following
promulgation by EPA of section 112(g) regulations, to provide the state
with adequate time to adopt regulations consistent with federal
requirements.
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
EPA's actions under section 502 of the Act do not create any new
requirements, but simply address operating permits programs submitted
to satisfy the requirements of 40 CFR part 70. Because this action to
grant interim approval of Maryland's operating permits program pursuant
to title V of the CAA and 40 CFR part 70 does not impose any new
requirements, it does not have a significant impact on a substantial
number of small entities.
EPA has determined that this action, promulgating interim approval
of Maryland's operating permits program, does not include a federal
mandate that may result in estimated costs of $100 million or more to
either state, local, or tribal governments in the aggregate, or to the
private sector. This federal action approves pre-existing requirements
under state or local law, and imposes no new federal requirements.
Accordingly, no additional costs to state, local, or tribal
governments, or to the private sector result from this action.
List of Subjects in 40 CFR Part 70
Environmental Protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
and Reporting and recordkeeping requirements.
Dated: June 19, 1996.
W. Michael McCabe,
Regional Administrator.
Part 70, title 40 of the Code of Federal Regulations is amended as
follows:
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Appendix A to part 70 is amended by adding the entry for
Maryland in alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Maryland
(a) Maryland Department of the Environment: submitted on May 9,
1995; interim approval effective on August 2, 1996; interim approval
expires August 3, 1998.
(b) Reserved
* * * * *
[FR Doc. 96-17020 Filed 7-3-96; 8:45 am]
BILLING CODE 6560-50-P
