[Federal Register Volume 76, Number 150 (Thursday, August 4, 2011)]
[Proposed Rules]
[Pages 47090-47092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19799]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2011-0623; FRL-9448-1]


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.

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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: [email protected].
    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 [email protected].

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

[[Page 47091]]

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

[[Page 47092]]

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.
[FR Doc. 2011-19799 Filed 8-3-11; 8:45 am]
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