2011-19799. Approval and Promulgation of Air Quality Implementation Plans; Maryland; Preconstruction Permitting Requirements for Electric Generating Stations in Maryland

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing to approve a State Implementation Plan (SIP) revision submitted by the Maryland Department of the Environment (MDE) on May 13, 2011 and July 15, 2011. This SIP revision revises and supplements 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. The SIP revision also requires electric generating stations to obtain a preconstruction permit from the MDE when a CPCN is not required under the PSC regulations and statutes. This action is being taken under the Clean Air Act (CAA).

DATES:

Written comments must be received on or before September 6, 2011.

ADDRESSES:

Submit your comments, identified by Docket ID Number EPA-R03-OAR-2011-0623 by one of the following methods:

1. http://www.regulations.gov. Follow the on-line instructions for submitting comments.

2. E-mail: [e-mail].

3. Mail: EPA-R03-OAR-2011-0623, Ms. Kathleen Cox, Associate Director, Office of Permits and Air Toxics, 3AP10, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

4. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-2011-0623. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at http://www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov,, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Maryland Department of the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230.

FOR FURTHER INFORMATION CONTACT:

David Talley at 215-814-2117, or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. EPA is proposing approval of this SIP revision because it corrects the deficiencies in the Maryland SIP and eliminates inconsistencies between State statutory and regulatory requirements for preconstruction permitting for electric generating stations in Maryland. It will also ensure that the 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 and 40 CFR 51.166, and will ensure that the SIP provides for the attainment and maintenance of the National Ambient Air Quality Standards (NAAQS).

Table of Contents

I. Background

II. Summary of SIP Revision

III. Proposed Action

IV. Statutory and Executive Order Reviews

I. Background

On May 13, 2011, MDE submitted a SIP revision request (#11-01) to EPA. The MDE is the State agency designated by the Governor of the State of Maryland as the official State agency responsible for implementing the CAA. The Maryland 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 generating stations owned by electric companies doing business in Maryland and is empowered by the State of Maryland to issue Certificates of Public Convenience and Necessity (CPCN) for the construction and modification of electric generating stations.

Section 110(a)(2)(C) of the CAA requires the State's SIP to have a program for regulation of construction and modification of sources. This includes the Prevention of Significant Deterioration (PSD) and nonattainment New Source Review (NSR) programs as required by Parts C and D of Title I of the CAA to assure that the NAAQS are protected. Electric generating stations in Maryland are required to obtain a CPCN from the PSC prior to construction or modification. We are proposing to approve the May 13, 2011 SIP revision that requires electric generating stations to obtain a CPCN prior to construction. This SIP revision also requires that all of the air quality provisions that would otherwise be incorporated into a permit to construct or an approval issued by MDE must be contained in a CPCN issued by the PSC.

II. Summary of SIP Revision

As provided in Environment Article 2, 2-402(3), Annotated Code of Maryland, electric generating stations that are not required to obtain a CPCN from the PSC for any reason remain subject to MDE's preconstruction permitting requirements. However, the current SIP-approved regulations at COMAR 26.11.02.09 and .10 exempt all electric generating stations constructed or modified by electric generating companies from MDE's permitting regulations. These regulations are inconsistent with the statutory provision in that they do not preserve MDE's permitting authority for electric generating stations that are not required to obtain a CPCN. We are proposing to approve the SIP revision submitted by MDE on May 13, 2011 to include updated provisions at COMAR 26.11.02.09 and .10.

For the first time, MDE is also submitting for the approval into its SIP, Public Utility Companies Article, 7-205, 7-207, 7-207.1 and 7-208, Annotated Code of Maryland as well as the PSC regulations at COMAR 20.79.01.01, .02, .06 and .07, COMAR 20.79.02.01, .02, and .03, and COMAR 20.79.03.01 and .02. The Public Utility Companies Article's provisions and the associated PSC regulations govern more than CAA requirements and air quality issues. Therefore, we are proposing to approve into the SIP only those regulatory and statutory provisions that govern the PSC process which are necessary to implement CAA requirements, and are taking no action on those portions of Maryland's May 13, 2001 submittal which are unrelated to requirements of the CAA The technical support document (TSD) included in the docket for this proposed rulemaking action specifies those provisions of the May 13, 2011 SIP revision request that are being proposed for approval into the SIP. The TSD also specifies those provisions upon which EPA is taking no action.

This SIP revision, when approved, will correct deficiencies within the current Maryland SIP and will allow Maryland's programs for the permitting of electric generating stations to meet the applicable requirements of the CAA and Federal regulations.

As previously stated, the May 13, 2011 SIP revision request includes (among other requirements) Title 20, Subtitle 79, Chapter 01, paragraph .07 Waivers and Modifications and Title 20, Subtitle 79, Chapter 02 paragraph .03 Proceedings on the Application, specifically subparagraph C. Phased Proceedings Requests. On July 15, 2011, Secretary Robert M. Summers of MDE submitted a letter to Shawn M. Garvin, Regional Administrator of EPA Region III to supplement the May 13, 2011 SIP revision request. The July 15, 2011 letter provides assurances that when the PSC implements these regulatory provisions, MDE, pursuant to its authority under the Public Utility Companies Article, Subsection 7-208, paragraph (f), will ensure that no waivers, modifications or phased applications are issued or accepted by the PSC that do not comply with all applicable requirements of the Federal Clean Air Act and Federal regulations. We are proposing to make this letter part of the Maryland SIP.

III. Proposed Action

EPA is proposing to approve the SIP revision request submitted by MDE on May 13, 2011 as supplemented on July 15, 2011, regarding the preconstruction permitting requirements for electric generating stations because it satisfies the applicable provisions of the CAA and associated Federal regulations. We are soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

IV. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• 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 proposed rule for clarifying the statutes and regulations in the Maryland State Implementation Plan for the preconstruction permitting requirements for electric generating stations in Maryland does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Authority: 42 U.S.C. 7401 et seq.

Dated: July 22, 2011.

W.C. Early,

Acting Regional Administrator, Region III.