[Federal Register Volume 60, Number 209 (Monday, October 30, 1995)]
[Proposed Rules]
[Pages 55231-55237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26856]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5321-9]
Clean Air Act Proposed Interim Approval of Operating Permits
Program; Maryland
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed interim approval.
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SUMMARY: The EPA proposes interim approval of the operating permits
program submitted by Maryland. This program was submitted by Maryland
for the purpose of complying with federal requirements which mandated
that states develop, and submit to EPA, programs for issuing operating
permits to all major stationary sources, and to certain other sources.
DATES: Comments on this proposed action must be received in writing by
November 29, 1995.
ADDRESSES: Comments should be addressed to Enid Gerena, (3AT23), Air,
Radiation and Toxics Division, U.S. Environmental Protection Agency,
Region III, 841 Chestnut Building, Philadelphia, PA 19107.
Copies of Maryland's submittal and other supporting information
used in developing the proposed interim approval are available for
inspection during normal business hours at the following location: Air,
Radiation, and
[[Page 55232]]
Toxics Division, U.S. Environmental Protection Agency, Region III, 841
Chestnut Building, Philadelphia, Pennsylvania 19107.
FOR FURTHER INFORMATION CONTACT: Enid A. Gerena (3AT23), Air,
Radiation, and Toxics Division, U.S. Environmental Protection Agency,
Region III, 841 Chestnut Building, Philadelphia, PA 19107, (215) 597-
8239.
SUPPLEMENTARY INFORMATION:
I. Background
A. Introduction
As required under Title V of the Clean Air Act (CAA) as amended
(1990), EPA has promulgated rules which define the minimum elements of
an approvable state operating permits program and the corresponding
standards and procedures by which EPA will approve, oversee, and
withdraw approval of state operating permits programs (see 57 FR 32250
(July 21, 1992)). These rules are codified at 40 Code of Federal
Regulations (CFR) Part 70 and require states to develop, and submit to
EPA, programs for issuing these operating permits to all major
stationary sources and to certain other sources. Due to pending
litigation over several aspects of the Part 70 rule which was
promulgated on July 21, 1992, Part 70 is in the process of being
revised. When the final revisions to Part 70 are promulgated, the
requirements of the revised Part 70 will define EPA's criteria for the
minimum elements of an approvable state operating permits program and
the corresponding standards and procedures by which EPA will approve,
oversee, and withdraw approval of state operating permits program
submittals. Until the date which the revisions to Part 70 are
promulgated, the currently effective July 21, 1992 version of Part 70
shall be used as the basis for EPA review.
B. Federal Oversight and Sanctions
The CAA requires that states develop and submit these programs 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 CAA and the July 21, 1992
version of Part 70, which together outline the currently applicable
criteria for approval or disapproval. 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 2 years after the November 15, 1993 date,
or by the end of an interim program, EPA must establish and implement a
federal operating permits program.
Following final interim approval, if the State of Maryland fails to
submit a complete corrective program for full approval by 6 months
before the interim approval expires, EPA would start an 18-month clock
for mandatory sanctions. If Maryland then failed to submit a complete
corrective program that EPA found complete before the expiration of
that 18-month period, EPA would be required to apply one of the
sanctions in section 179(b) of the CAA. Such sanction would remain in
effect until EPA determined that Maryland had corrected the deficiency
by submitting a complete corrective program. Moreover, if the
Administrator found a lack of good faith on the part of Maryland, both
sanctions under section 179(b) would 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 had not submitted a corrective
program that EPA found complete, a second sanction would be required.
If, following final interim approval, EPA disapproved Maryland's
complete corrective program, EPA would 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 that date Maryland had submitted a
revised program and EPA had determined that this program corrected the
deficiencies that prompted the disapproval. Moreover, if the
Administrator found a lack of good faith on the part of Maryland, both
sanctions under section 179(b) would apply after the expiration of the
18-month period until the Administrator determined that Maryland had
come into compliance. In all cases, if, six months after EPA applied
the first sanction, Maryland had not submitted a revised program that
EPA had determined corrected the deficiencies that prompted the
disapproval, a second sanction would be required.
In addition, discretionary sanctions may be applied 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. Moreover, if EPA has not
granted full approval to a Maryland program by the expiration of an
interim approval period, EPA must promulgate, administer and enforce a
federal operating permits program for Maryland upon the date the
interim approval period expires.
C. State of Maryland's Submittal
On May 9, 1995, Maryland submitted an operating permits program for
review by EPA. The submittal was supplemented by additional materials
on June 9, 1995, and was found to be administratively complete pursuant
to 40 CFR 70.4(e)(1). The submittal includes the following components:
transmittal letter; description of Maryland's Title V operating permits
program; state regulations; Attorney General's legal opinion; workload
analysis, permit fee demonstration; permitting program documentation,
and additional information (i.e., transition plan, data management,
compliance tracking and enforcement description).
II. Summary and Analysis of Maryland's Submittal
The analysis contained in this notice focuses on the major portions
of Maryland's operating permits program submittal: regulations and
program implementation, fees, support materials, and provisions
implementing the requirements of Titles III and IV of the CAA.
Specifically, this notice addresses the deficiencies in Maryland's
submittal which will need to be corrected to fully meet the
requirements of the July 21, 1992 version of Part 70. These
deficiencies as well as other issues related to Maryland's operating
permits program are discussed in detail in the Technical Support
Document (TSD). The full program submittal and the TSD are available
for review as part of the public docket. The docket may be viewed
during regular business hours at the EPA Region III office listed in
the ADDRESSES section of this notice.
A. Regulations and Program Implementation
Maryland's operating permits program is primarily defined by
regulations adopted as Code of Maryland Regulations (COMAR), Title 26,
Subtitle 11. The specific regulations being adopted to implement the
Part 70 requirements will appear at COMAR Sec. 26.11.02 (Permits,
Approvals, and Registration) and COMAR Sec. 26.11.03 (Permits,
Approvals, and Registration--Part 70 Permits). Provisions for
enforcement authority are located in COMAR Sec. 26.11.02.05. Maryland
submitted a list identifying ``Title V'' and ``Non-Title V'' provisions
of its regulations. This list is provided in the TSD. In today's
proposal, EPA is taking action only on the Title V portions of
Maryland's submittal.
[[Page 55233]]
During the review of Maryland's regulations, EPA identified several
instances of vague language, misreferences, typographical errors, and
errors of omission in the regulatory language. The provisions in which
these errors occur are identified in the TSD and must be interpreted as
if written correctly to fully meet the requirements of Part 70. The
following analysis of Maryland's operating permit regulations
corresponds directly with the format and structure of Part 70.
Section 70.4 State Program Submittals and Transition
Maryland's regulations substantially meet the requirements of 40
CFR 70.4 for the State program submittal. For consistency with section
502(b)(6) of the Clean Air Act and 40 CFR 70.4(b)(3)(x), Maryland must
address the following issue on standing for judicial review and the
following changes must be made in order to fully meet the requirements
of 40 CFR 70.4:
1. The Attorney General of Maryland, in his opinion dated June 9,
1995, states that ``the laws of Maryland provide adequate authority to
carry out the program submitted on May 9, 1995 by the Maryland
Department of the Environment (the Department) to the U.S Environmental
Protection Agency for approval to administer and enforce the operating
permit program under Title V of the CAA and 40 CFR Part 70 (the Part 70
program).'' Section 502(b)(6) of the CAA and 40 CFR 70.4(b)(3)(x)
require that the program provide standing for judicial review of a
permit action to THE PERMIT APPLICANT, any person who participated in
the public comment process and any other person who could obtain
judicial review of that action under applicable law. EPA interprets
section 502(b)(6) of the CAA and part 70 as requiring that approvable
state title V permits programs must provide judicial review to any
party who participated in the public comment process and who meets the
threshold requirements of Article III of the U.S. Constitution for
standing in federal courts.
The Attorney General cites the Maryland Environmental Standing Act
(MESA), Md. Nat. Res. Code Ann. Secs. 1-501 to 1-508 (1990), as the
primary avenue for third parties to obtain judicial review of the
Department's issuance of a Part 70 permit. The Attorney General
interprets MESA to provide standing to challenge permit issuance in
actions for mandamus or equitable relief (including declaratory relief)
to several categories of persons. Those categories are: (1) The state,
(2) any political subdivision of the state, and (3) any other person,
regardless of whether that person possesses a special interest
different from that possessed generally by the residents of Maryland or
whether substantial personal or property damage to that person is
threatened. The Attorney General recognizes that MESA does not provide
standing for a direct judicial review of permit actions under
Maryland's Administrative Procedure Act (APA), Md. State Gov't Code
Ann. Sec. 10-201 (1990). Nonetheless, it appears that review of
essentially equivalent scope as direct judicial review is available
under MESA. The Attorney General notes that the Maryland Supreme Court
has stated that an administrative proceeding such as permit issuance or
denial, even if not subject to direct review under the APA, would be
subject to judicial review of essentially the same scope in an action
for mandamus or equitable relief (including certiorari, injunction, or
declaratory judgment).
For purposes of MESA, the term ``person'' includes any resident of
Maryland, any Maryland corporation, and any partnership, organization,
association or legal entity doing business in the state. Parties not
falling within this definition of ``person'' (for example, individuals
living in an adjacent state but near a Maryland source, or an
organization not doing business in Maryland) can not take advantage of
the standing provisions of MESA. Instead, those parties are required to
establish standing for judicial review under the Maryland common law of
standing. Under Maryland common law, in order to establish standing, a
party must demonstrate it has a ``specific interest or property right''
such that the party will suffer harm that is different in kind from
that suffered by the general public. 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 for standing. 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 requirements would become more
stringent than Article III standing requirements. In that event, EPA
will take appropriate action under 40 CFR 70.11(c).
With respect to organizations not doing business in Maryland, the
Maryland standing requirements are somewhat less favorable than the
standing requirements of Article III of the U.S. Constitution. The
federal courts interpret Article III to provide standing for
organizations in actions brought to protect the interests of its
members, provided certain conditions are met. See Chesapeake Bay
Foundation v. Bethlehem Steel Corp., 608 F.Supp. 440 (D. Md. 1985).
Under 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. (Of course, organizations doing business in
Maryland can establish standing under MESA, as discussed above.)
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 requirements of Article III
of the U.S. Constitution as they apply to federal courts. A
straightforward approach Maryland could take to resolving this issue
would be to amend its state APA to directly provide 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); this would avoid the
risk of any future Maryland judicial decision interpreting MESA or
Maryland's common law of standing potentially compromising Maryland's
Part 70 approval status.
Section 70.5 Permit Applications
Maryland's regulations substantially meet the requirements of 40
CFR 70.5 for permit applications. The following changes must be made in
order to fully meet the requirements of 40 CFR 70.5:
1. COMAR Sec. 26.11.03.04 lists 17 types of emission units and
activities that are exempt from being included in the Part 70 permit
application. 40 CFR 70.5(c) allows EPA to approve a list of
insignificant activities or emissions levels which need not be included
in permit applications; however, the State must identify such emissions
levels or
[[Page 55234]]
insignificant activities based on size, emission rate or production
rate. Maryland must make three changes to COMAR Sec. 26.11.03.04 in
order to meet the requirements of 40 CFR 70.5(c):
a. As part of the list of emission units and activities exempt from
the Part 70 permit application, COMAR Sec. 26.11.03.04 A(18) lists
``any other emission unit that is not subject to an applicable
requirement of the Clean Air Act.'' Part 70 does not allow such a broad
exemption of emission units from the permit application requirements.
40 CFR 70.5(c)(3)(i) requires that a permit application describe all
emissions of regulated air pollutants from any emissions unit, except
where such units are exempted as part of a list of insignificant
activities or emission levels. Insignificant activities or emissions
levels must be clearly identified and established based on a
justifiable limitation, such as a size or emissions threshold.
b. Maryland must revise COMAR Sec. 26.11.03.04 B to provide that a
permit applicant shall not omit information needed to determine the
applicability of, or to impose, any applicable requirement, consistent
with 40 CFR 70.5(c).
c. Maryland must revise COMAR Sec. 26.11.03.04 A(2) to clarify the
exemption for boilers used exclusively to operate steam engines for
farm and domestic use. This exemption must be modified to impose a
justifiable and objective emission limit, heat content limit, or size
limitation to restrict this exemption to insignificant activities.
Maryland must also provide enough information to identify the activity
and/or unit qualifying for an exemption.
Section 70.7 Permit Issuance, Renewal, Reopenings, and Revisions
Maryland's regulations substantially meet the requirements of 40
CFR 70.7 for permit issuance, renewal, reopenings, and revisions. The
following changes must be made in order to fully meet the requirements
of 40 CFR 70.7:
1. COMAR Sec. 26.11.03.21 A provides that general permits will be
issued after notice and opportunity for public comment and hearing as
required by the rule making provisions of the Administrative Procedure
Act (APA), State Government Article Sec. 10-101 et seq., Annotated Code
of Maryland, and Environmental Article Sec. 2-301, Annotated Code of
Maryland. While the APA and Sec. 2-301 and Sec. 2-303 of the
Environmental Article provide adequate public notice and comment
provisions, they do not provide all necessary permit issuance
procedures required by 40 CFR 70.7(h). COMAR Sec. 26.11.03.21 A also
states that any general permit shall comply with all requirements
applicable to other Part 70 permits.
It is not clear, however, whether this provision applies to the
issuance of general permits. Maryland's provisions for issuance of Part
70 permits (COMAR Secs. 26.11.03.07-.09) are adequate, but the
regulations do not specifically state whether they apply to general
permits. Specifically, Maryland must require that the procedures for
issuing general permits include notice and opportunity for
participation by affected states consistent with 40 CFR 70.7(h)(3) and
70.8 (COMAR Sec. 26.11.03.08) and a 45-day EPA review period,
consistent with 70.8(a) and (c) (COMAR Sec. 26.11.03.09). Further,
Maryland must keep a record of public commenters and issues raised
during the public participation process so that EPA may fulfill its
obligation under section 505(b)(2) of the Act to determine whether a
citizen petition may be granted (COMAR Sec. 26.11.03.07(G)). EPA
recommends that Maryland clarify that these provisions apply to the
issuance of general permits by citing in COMAR Sec. 26.11.03.21 A the
appropriate sections of Maryland's regulations.
2. The procedures for revising a general permit under COMAR
Secs. 26.11.03.21 J and L must be changed to meet the requirements of
40 CFR 70.7(e) regarding permit revision procedures. COMAR
Sec. 26.11.03.21 J allows the Department to revise or repeal a general
permit using the procedures that are appropriate to the particular
permit. COMAR Sec. 26.11.03.21 L states that the revision procedures
set forth in Maryland's regulations do not apply to a general permit,
except as provided in the general permit. These sections are
inconsistent with Part 70 because they give the Department discretion
to determine the appropriate procedures that should be followed to
revise a general permit. Under 40 CFR 70.7(e)(1), the permitting
authority is required to provide procedures for permit modifications
that provide a level of public participation and review by the
permitting authority, EPA and affected states that is at least equal to
that provided in Part 70. Therefore, if the Department proposes a
significant change in the general permit's terms and conditions, such
as a relaxation of reporting requirements or an increase in the
applicable emissions limit, the general permit would need to be revised
according to procedures for a significant permit modification,
including a 30 day public comment period, an opportunity for a public
hearing, and review by EPA and affected states. Those proposed
revisions to the general permit that meet the criteria for
administrative permit amendments or minor permit modifications could be
processed using procedures consistent with 40 CFR 70.7(d) and
Sec. 70.7(e)(2), respectively. It should be made clear that the general
permit cannot be modified for individual sources; rather, each source
that applies for and is granted approval to operate under the general
permit must adhere to the same permit terms and conditions. If the
Department determines that a revision to the general permit is
necessary, it must revise the permit using procedures consistent with
40 CFR 70.7, as described above.
3. Maryland's requirements for permit reopenings, including COMAR
Secs. 26.11.03.07 A(2), 26.11.03.08 A and 26.11.03.20 C (4), (5) and
(6), provide the State discretion to follow procedures other than the
procedures for permit issuance. Maryland's COMAR Sec. 26.11.03.20 C(4)
states that ``the procedures that the Department specifies to be
followed if a permit is reopened shall be based on the Department's
determination as to what type of change to the permitted source is
likely to result from reopening the permit, using Regulations
[26.11.03] .14-.17 [pertaining to permit revisions] of this chapter as
guidance.'' By contrast, 40 CFR 70.7(f)(2) requires that procedures to
reopen and issue a permit shall follow the same procedures as apply to
initial permit issuance. Maryland's provisions for permit reopening
procedures are inconsistent with Part 70. However, future revisions to
Part 70 may provide flexibility in the procedures that States must use
to reopen permits. On August 31, 1995, EPA proposed revisions to Part
70 that would streamline the procedures for revising Title V operating
permits. (See 60 FR 45530.)
4. COMAR Sec. 26.11.03.17 F provides that a permittee shall submit
an application for a significant permit modification not later than 12
months after commencing operation of the changed source unless the
change is prohibited by the Part 70 permit. This provision is
inconsistent with 40 CFR 70.7(e)(4), which does not allow a source to
make a significant permit modification prior to receiving a revised
permit from the permitting authority. A significant permit modification
is a change that does not qualify as an administrative permit amendment
or a minor permit modification. Significant modifications include
relaxations in monitoring, reporting, or recordkeeping. By allowing a
source to submit its permit application 12 months after making a
change, COMAR Sec. 26.11.03.17
[[Page 55235]]
F is less stringent than 40 CFR 70.7(e)(4) and allows a source even
more leniency in making a significant change than for making minor
permit modifications or administrative permit amendments. This is
clearly not the intent of the significant permit modification
provisions of 40 CFR 70.7(e)(4). Future revisions to Part 70, as
described above, may provide flexibility in the procedures that States
must use to process permit revisions.
5. COMAR Sec. 26.11.03.14 C allows the Department to approve
changes to compliance plans or schedules as part of an administrative
permit amendment or minor permit modification. This provision is less
stringent than 40 CFR 70.7 because the relaxation of a compliance plan
or schedule is a significant change that should be processed as a
significant permit modification. Future revisions to Part 70, as
described above, may provide flexibility in the procedures that States
must use to revise permits.
6. COMAR Sec. 26.11.03.15 B(7) contains the following sentence:
``Notwithstanding Sec. [26.11.03.15] B(1)-(6) [pertaining to
administrative permit amendments] of this regulation, for purposes of
the acid rain portion of a Part 70 permit is governed by regulations
promulgated under Title IV of the Clean Air Act.'' This sentence
apparently was written in error. EPA assumes that this sentence is
meant to reflect the provisions of 40 CFR 70.7(e), which states that a
permit modification (other than an administrative permit amendment) for
purposes of the acid rain portion of the permit shall be governed by
regulations promulgated under Title IV of the Clean Air Act. Maryland
must correct the wording of COMAR Sec. 26.11.03.15 B(7).
Section 70.8 Permit Review By EPA and Affected States
Maryland's regulations substantially meet the requirements of 40
CFR 70.8 for permit review by EPA and affected states. The following
changes must be made in order to fully meet the requirements of 40 CFR
70.8:
1. COMAR Sec. 26.11.03 appears to allow the Department to make
changes in a final permit after EPA has completed its review of the
permit. For example, COMAR Sec. 26.11.03.11 includes provisions for
implementing changes to a final permit subsequent to a contested case
hearing and the issuance of a proposed decision by an Administrative
Law Judge (ALJ). On the basis of past experience with other air quality
control programs, Maryland believes that it will be an extremely rare
occasion when an applicant seeks such a hearing. In the event that such
proceeding does occur, COMAR Sec. 26.11.03.11 affords EPA the
opportunity to participate in the hearing. In the event that EPA does
not participate, COMAR Sec. 26.11.03.11 affords EPA a thirty (30) day
opportunity to comment on the proposed decision of the ALJ prior to the
Department's issuance of a final decision in the matter. However, in
the event that the Department thereafter issues a final decision which
modifies or changes conditions in the final permit, federal and state
requirements (the Clean Air Act, 40 CFR 70.8 and COMAR
Sec. 26.11.03.09) should be read as requiring the Department to provide
EPA with an additional (45 day) period in which to review and comment
on the final permit. Maryland must revise its Attorney General's
Opinion to acknowledge that in the event the Department implements
changes to any final permit, EPA will have an additional (45 day)
period to review and comment on the final permit, as revised by the
Department.
B. Variances
Maryland Environmental Article sections 2-501, 606, 610(c), 611,
and 613 are cited by the Department as variance provisions which
authorize the Department to deviate from certain applicable
requirements within and outside the permitting process. EPA has no
authority to approve provisions of State law, such as the variance
provisions referred to in these sections, which are inconsistent with
the CAA. EPA does not recognize the ability of a permitting authority
to grant relief from the duty to comply with a federally enforceable
Part 70 permit, except where such relief is granted through procedures
allowed by Part 70. EPA reserves the right to enforce the terms of the
Part 70 permit where the permitting authority purports to grant relief
from the duty to comply with a Part 70 permit in a manner inconsistent
with Part 70 procedures.
C. Permit Fee Demonstration
COMAR Sec. 26.11.02.19(A) states that owners or operators of Part
70 sources will be required to pay an annual fee consisting of a base
fee of two hundred dollars ($200) plus an emissions-based fee for each
ton of regulated emissions. Beginning in January 1, 1996, the fee rate
will be twenty-five dollars per ton ($25) of regulated emissions. On
January 1, 1997, this annual fee will be adjusted by the Consumer Price
Index (CPI). Fee revenues received from Part 70 facilities will be
placed in a segregated portion of the Department's Air and Radiation
Management Administration budget. Surplus funds from any prior year of
the program will be carried over to the following year to be used
solely for Part 70 permitting activity.
Only program-related fees from facilities subject to Part 70
applicability will be used to fund the program. Maryland's fee
calculation, based upon recent (September 1994) emissions inventory
data, shows that revenues will be able to cover the estimated costs of
the program. In chapter IV of the submittal entitled, ``Workload
Analysis and Fee Demonstration'', Maryland estimates revenues and costs
associated with the implementation of its operating permits program.
The Air and Radiation Management Administration proposes an accounting
method whereby Part 70 program activities performed by technical
personnel in the Air Quality Permits and Compliance Program will be
coded directly to specified Part 70 program cost accounts. In the
submittal, Maryland stated that in the event of a temporary shortfall
of revenues, the Department will have the option to prorate fees
collected from facilities with Phase I units (acid rain) so as to allow
fees from non-Phase I units at these sites to be used for Part 70
activities. According to 40 CFR 70.9(b)(3), the permitting authority is
allowed to calculate fees on any particular basis or in the same manner
for all Part 70 sources, or all regulated air pollutants, provided that
the state collects a total amount of fees sufficient to meet the
program. Maryland meets the requirements of 40 CFR 70.9(b)(3). However,
it will be necessary for the State to demonstrate how these revenues
will be prorated. EPA recommends that Maryland establish an account
tracking system that will distinguish between revenues and expenditures
attributable to Phase I from non-Phase I units. The estimates of
revenues from the authorized collection of emission-based fees reveal
that Maryland's program will have adequate funding to cover the direct
and indirect costs of implementing the permit program during each of
the first four years.
D. Provisions Implementing the Requirements of Title III Implementing
Title III Standards Through Title V Permits
Maryland's regulations provide general authority to administer and
enforce the requirements of the Clean Air Act regarding hazardous air
pollutants, and thus generally meet the requirements of 40 CFR 70.3
(a)-(b). The following issue must be addressed in order to fully meet
the requirements of 40 CFR 70.3 (a)-(b).
[[Page 55236]]
1. In its May 9, 1995 submittal, Maryland advised EPA that it was
not seeking full Part 70 program approval regarding hazardous air
pollutants, but was considering whether to request EPA approval of its
existing air toxics program (COMAR Sec. 26.11.15) under Subpart E of 40
CFR Part 63. As a result, the Attorney General did not review the
State's Part 70 program regarding current federal requirements for
hazardous air pollutants. Maryland must resolve the issue of how it
will address the CAA's section 112 applicable requirements and revise
its Attorney General's opinion to include a detailed review of the
State's Part 70 program regarding current federal requirements for
hazardous air pollutants.
Under Environment Article, Title 2, of the Annotated Code of
Maryland and COMAR Sec. 26.11.03.06 A(1), Maryland, in its Title V
program submittal, has demonstrated broad legal authority to
incorporate all applicable requirements into permits and to enforce its
permit requirements. In its May 9, 1995 submittal, Maryland indicated
that the Part 70 permits will be the mechanism to implement mandatory
Section 112 requirements and that other federally-enforceable
mechanisms may be used to carry out specific CAA section 112 activities
but only if approved by EPA. EPA regards this commitment as an
obligation to obtain further legal authority as needed to issue permits
that assure compliance with the CAA's section 112 applicable
requirements.
For a further discussion in support of this interpretation, please
refer to the TSD accompanying this rulemaking, which is located in the
public docket, and the April 13, 1993 guidance memorandum entitled
``Title V Program Approval Criteria for Section 112 Activities,''
signed by John Seitz, Director, Office of Air Quality Planning and
Standards, Office of Air and Radiation, USEPA.
Implementation of 112(g) Upon Program Approval
EPA is proposing to approve Maryland's operating permits program
for the purpose of implementing CAA section 112(g) during the
transition period between federal promulgation of a section 112(g) rule
and Maryland's adoption of section 112(g) implementing regulations.
Until recently, EPA had interpreted the CAA to require sources to
comply with section 112(g) beginning on the date of approval of the
Title V program regardless of whether EPA had completed its section
112(g) rulemaking. EPA has since revised this interpretation of the CAA
as described in a February 14, 1995 Federal Register notice (see 60 FR
83333). The revised interpretation postpones the effective date of
section 112(g) until after EPA has promulgated a rule addressing that
provision. The rationale for the revised interpretation is set forth in
detail in the February 14, 1995 interpretive notice.
The section 112(g) interpretive notice explains that EPA is still
considering whether the effective date of section 112(g) should be
delayed beyond the date of promulgation of the federal rule to allow
states time to adopt rules implementing the federal rule, and that EPA
will provide for any such additional delay in the final section 112(g)
rulemaking. Unless and until EPA provides for such an additional
postponement of section 112(g), Maryland must be able to implement
section 112(g) during the transition period between promulgation of the
federal section 112(g) rule and adoption of implementing Maryland
regulations.
EPA believes that, although Maryland currently lacks a program
designed specifically to implement section 112(g), Maryland's Title V
operating permits program will serve as an adequate implementation
vehicle during the transition period because the program will allow
Maryland to select control measures that would meet Maximum Achievable
Control Technology (MACT) on a case-by-case basis, as defined in
section 112, and incorporate these measures into federally enforceable
source-specific permits.
This proposed approval clarifies that Maryland's operating permits
program is available as a mechanism to implement section 112(g) during
the transition period between promulgation of the section 112(g) rule
and adoption by Maryland of rules established to implement section
112(g). EPA is proposing to limit the duration of this approval to an
outer limit of 18 months following EPA's promulgation of the section
112(g) rule. Comment is solicited on whether 18 months is an
appropriate period taking into consideration the State's procedures for
adoption of regulations. However, since this proposed approval is for
the single purpose of providing a mechanism to implement section 112(g)
during the transition period, the approval itself 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.
If Maryland does not wish to implement section 112(g) through the
proposed mechanisms discussed above and can demonstrate that an
alternative means of implementing section 112(g) exists during the
transition period, EPA may, in the final action approving Maryland's
Part 70 program, approve such alternative.
Program for Straight Delegation of Section 112 Standards
As previously noted, Maryland has advised EPA that it currently is
not seeking full Part 70 program approval regarding hazardous air
pollutants, but is considering a request for approval of its existing
air toxics program (COMAR Sec. 26.11.15) under Subpart E of 40 CFR Part
63. However, prior to receiving EPA approval of its existing air toxics
program, Maryland must agree that the requirements specified in 40 CFR
70.4(b), encompass section 112(l)(5) requirements for a program for
delegation of unchanged section 112 standards. Section 112(l)(5)
requires state programs to contain adequate authorities and resources
for implementation, and an expeditious compliance schedule, which are
also requirements under Part 70. Prior to a decision by EPA regarding
approval of its existing air toxics program, EPA proposes to grant
approval under section 112(l)(5) and 40 CFR 63.91 of Maryland's program
for receiving delegation of section 112 standards that are unchanged
from the federal standards as promulgated. For EPA-promulgated rules
which are applicable to sources in the State, the State intends to
request delegation after adopting the rules. The details of this
delegation mechanism will be established prior to delegating any
section 112 standards. This program applies to both existing and future
standards but is limited to sources covered by the Part 70 program.
E. Title IV Provisions/Commitments
As part of the May 9, 1995 program submittal, Maryland committed to
submit all missing portions of the Title IV acid rain program by
November 15, 1995, including its State acid rain regulations.
III. Request for Public Comments
EPA is soliciting public comments on the issues discussed in this
notice or on other relevant matters. These comments will be considered
before taking final action. Interested parties may participate in this
federal rulemaking action by submitting written comments
[[Page 55237]]
to the EPA Regional office listed in the ADDRESSES section of this
notice.
Proposed Action
EPA is proposing to grant interim approval of the operating permits
program submitted by Maryland on May 9, 1995, and the Attorney
General's Legal Opinion submitted on June 9, 1995. The scope of
Maryland's Part 70 program applies to all Part 70 sources (as defined
in the program) within Maryland, except for 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
CAA as ``any 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.'' See section 302(r) of the
CAA; see also 59 FR 43956, 43962 (Aug. 25. 1994); 58 FR 54364 (Oct. 21,
1993). Prior to full approval by EPA, Maryland must make the following
changes:
1. The Maryland Environmental Standing Act (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 requirements of Article III of the U.S. Constitution as they
apply to federal courts.
2. Revise the provisions for insignificant activities under COMAR
Sec. 26.11.03.04 as follows, to achieve consistency with the
requirements of 40 CFR 70.5(c):
a. Remove the exemption for ``any other emission unit that is not
subject to an applicable requirement of the Clean Air Act'' under COMAR
Sec. 26.11.03.04 A(18).
b. Revise COMAR Sec. 26.11.03.04 B to provide that a permit
applicant shall not omit information needed to determine the
applicability of, or to impose, any applicable requirement.
c. Revise COMAR Sec. 26.11.03.04 A(2) to add a justifiable
limitation on the exemption for boilers used exclusively to operate
steam engines for farm and domestic use.
3. Revise COMAR Sec. 26.11.03.21 to clarify that the procedures for
issuing general permits must include affected state and EPA review, and
that the state must keep a record of the public commenters and issues
raised during the public participation process, consistent with 40 CFR
70.7(h) and 70.8.
4. Revise COMAR Secs. 26.11.03.21 J and L to require that general
permits are revised according to procedures consistent with 40 CFR
70.7(e).
5. Revise COMAR Secs. 26.11.03.07 A(2), 26.11.03.08 A, and
26.11.03.20 C (4), (5) and (6) to provide that the procedures for
initial permit issuance also must be followed for permit reopenings, to
achieve consistency with the requirements of 40 CFR 70.7(f)(2).
6. Remove subsection F of COMAR Sec. 26.11.03.17, which
impermissibly allows sources to submit a permit application within 12
months after making a significant permit modification.
7. Revise COMAR Sec. 26.11.03.14 C to require that any relaxation
of a compliance plan or schedule will be processed as a significant
permit modification, consistent with 40 CFR 70.7(e)(4).
8. Revise the wording of COMAR Sec. 26.11.03.15 B(7), pertaining to
permit modifications for acid rain permits, consistent with 40 CFR
70.7(e).
9. Amend the Attorney General's Opinion to clarify that if the
Department proposes to change a final permit as a result of a contested
case decision by an Administrative Law Judge and pursuant to COMAR
Sec. 26.11.03.11, the Department will revoke the final permit and
reissue it with the proposed changes so as to provide EPA with the (45
day) review and comment period required pursuant to the CAA, 40 CFR
70.8 and COMAR Sec. 26.11.03.09.
10. Revise the Attorney General's Opinion to include a detailed
review of the State's Part 70 program regarding current federal
requirements for hazardous air pollutants.
This interim approval, which may not be renewed, extends for a
period of up to 2 years. During the 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 a federal
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 interim approval, as does the 3-year time period
for processing the initial permit applications.
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 applicable to Part 70 sources as
promulgated by EPA. 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 proposing under section 112(l)(5)
and 40 CFR 63.91 to grant approval of Maryland's program for receiving
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.
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
propose 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.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: October 20, 1995.
W. Michael McCabe,
Regional Administrator.
[FR Doc. 95-26856 Filed 10-27-95; 8:45 am]
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