[Federal Register Volume 77, Number 28 (Friday, February 10, 2012)]
[Rules and Regulations]
[Pages 6963-6971]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2984]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2011-0623; FRL-9628-7]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is granting limited approval of a State Implementation 
Plan (SIP) revision submitted by the Maryland Department of the 
Environment (MDE). This SIP revision revises and supplements the 
Maryland SIP by adding the preconstruction permitting requirements for 
electric generating stations that are required to receive a Certificate 
of Public Convenience and Necessity (CPCN) from the Maryland Public 
Service Commission (PSC) before commencing construction or 
modification. The SIP revision also requires electric generating 
stations to obtain a preconstruction permit from MDE when a CPCN is not 
required under the PSC regulations and statutes. EPA is granting 
limited approval of these revisions to Maryland's preconstruction 
program for electric generating stations in accordance with the 
requirements of the Clean Air Act (CAA).

DATES: Effective Date: This final rule is effective on March 12, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2011-0623. All documents in the docket are listed in 
the www.regulations.gov Web site. Although listed in the electronic 
docket, some information is not publicly available, i.e., confidential 
business information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State 
submission are available at the Maryland Department of the Environment, 
1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230.

FOR FURTHER INFORMATION CONTACT: David Talley, (215) 814-2117, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Throughout this document, whenever ``we,'' ``us,'' or ``our'' is 
used, we mean EPA. The PSC is an agent of the State of Maryland and is 
an independent unit in the Executive Branch of the government of the 
State of Maryland. The PSC regulates public utilities including 
electric generating stations owned by electric companies doing business 
in Maryland and is empowered by the State of Maryland to issue CPCNs

[[Page 6964]]

for the construction and modification of electric generating stations. 
On August 4, 2011 (76 FR 47090), EPA published a notice of proposed 
rulemaking (NPR) for the State of Maryland. The NPR proposed approval 
of changes to the Code of Maryland Administrative Regulations (COMAR), 
specifically the MDE regulations at COMAR 26.11.02.09 and 26.11.02.10. 
The NPR also proposed to approve into the Maryland SIP for first time 
the following: (1) Maryland statutory provisions at Md. Code Ann., 
Public Utilities Cos. sections 7-205 (2006), 7-207 (2007), 7-207.1 
(2007) and 7-208 (2001); and (2) PSC regulations at COMAR 20.79.01.01; 
20.79.01.02; 20.79.01.06; 20.79.01.07; 20.79.02.01; 20.79.02.02; 
20.79.02.03; 20.79.03.01; and 20.79.03.02. The formal SIP revision 
(11-01) was submitted by MDE on May 13, 2011. EPA initially 
proposed full approval of the submission.
    However, in response to comments received on that proposal, a 
portion of the submission has been withdrawn by MDE. On December 20, 
2011, MDE withdrew COMAR 20.79.01.07 (regarding the PSC's waiver 
authority for CPCNs) from its Maryland SIP revision submission. EPA is 
now granting limited approval of the remainder of the MDE SIP 
submission for electric generating stations which includes COMAR 
26.11.02.09 and 26.11.02.10, applicable parts of sections 7-205, 7-207, 
7-207.1 and 7-208 of the Md. Code Ann., and applicable parts of COMAR 
20.79.01.01; 20.79.01.02; 20.79.01.06; 20.79.02.01; 20.79.02.02; 
20.79.02.03; 20.79.03.01; and 20.79.03.02. See Sections III, IV and V 
below for more detail.
    In our August 4, 2011 notice of proposed rulemaking, EPA proposed 
to include a July 15, 2011 letter from the Secretary of MDE in the 
Maryland SIP. Because MDE's July 15, 2011 letter addressed COMAR 
20.79.01.07 which MDE has subsequently withdrawn from our 
consideration, EPA is not including the July 15, 2011 Letter in our 
limited approval of the May 13, 2011 Maryland SIP submission (as 
amended on December 20, 2011).

II. Summary of SIP Revision

    Under the CAA, major stationary sources of air pollution are 
required to obtain a permit to construct prior to commencing 
construction or modification activities. The Maryland statutory 
provisions at sections 7-205, 7-207, 7-207.1, and 7-208 of the Md. Code 
Ann. and the PSC's regulations identified above require electric 
generating stations in Maryland to obtain a CPCN from the PSC prior to 
construction or modification activities which would require a permit 
under the CAA. The CPCNs serve as the mechanism for the State to 
implement Prevention of Significant Deterioration (PSD) and 
Nonattainment New Source Review (NSR) requirements for electric 
generating stations in Maryland. EPA is limitedly approving Maryland's 
SIP revision request to add the statutory and regulatory requirements 
that require electric generating stations to obtain a CPCN prior to 
construction or modification. These requirements were not previously in 
the Maryland SIP; therefore, our limited approval corrects deficiencies 
in the Maryland SIP and strengthens the SIP.
    Previously, the Maryland SIP at COMAR 26.11.02.09 and 26.11.02.10 
exempted electric generating stations constructed or modified by 
electric generating companies from MDE's permitting regulations. 
However, the State of Maryland has since modified Md. Code Ann., 
Environment Section 2-402(3) and COMAR 26.11.02.09 and 26.11.02.10 so 
that electric generating stations that are not required to obtain CPCNs 
from the PSC remain subject to MDE's preconstruction permitting 
requirements. Therefore, the SIP regulations were inconsistent with 
Maryland's present statutory and regulatory provisions in that they do 
not preserve MDE's permitting authority for electric generating 
stations that are not required otherwise to obtain a CPCN. MDE's May 
13, 2011 SIP revision request included the amended MDE regulations, 
COMAR 26.11.02.09 and 26.11.02.10. Our limited approval of the May 13, 
2011 SIP revision request, as amended on December 20, 2011, eliminates 
the inconsistency between the Maryland SIP and Maryland's present 
statutory and regulatory provisions regarding MDE's ability to permit 
electric generating stations when the electric generating stations do 
not receive CPCNs.
    Section 110(a)(2)(C) of the CAA, 42 U.S.C. section 7410(a)(2)(C), 
requires the state SIP to have a program for regulation of construction 
and modification of stationary sources to assure that national ambient 
air quality standards (NAAQS) are achieved, including a permit program 
as required by Part C of Title I of the CAA for PSD and Part D of Title 
I of the CAA for NSR. Our limited approval of Maryland's SIP revision 
of May 13, 2011, as amended on December 20, 2011, ensures that the 
Maryland SIP has a permit program for the construction and modification 
of electric generating stations as required by Parts C and D of Title I 
of the CAA and ensures that the SIP provides for the attainment and 
maintenance of the NAAQS. Included in the May 13, 2011 proposed SIP 
revision is section 7-208(f) of the Md. Code Ann. which specifically 
requires the PSC to include in CPCNs the requirements of federal and 
state environmental laws and standards as identified by MDE. EPA's 
limited approval ensures the Maryland SIP is adequate to prevent 
significant deterioration of air quality in areas designated as 
attainment or unclassifiable as required by sections 110(a) and 161 of 
the CAA, 42 U.S.C. sections 7410(a) and 7471, and 40 CFR 51.166. EPA's 
limited approval of the Maryland permitting program for electric 
generating stations also ensures that the Maryland SIP meets plan 
requirements for nonattainment areas as required by Part D of Title I 
of the CAA. Because the provisions in the May 13, 2011 SIP submission, 
as amended on December 20, 2011, strengthen the Maryland SIP, EPA 
limitedly approves them into the Maryland SIP.

III. Limited Approval

Why is EPA granting only ``Limited Approval'' of Maryland's 
preconstruction program for electric generating stations for the 
Maryland SIP?

    In general, EPA has determined that MDE's May 13, 2011 submission 
(11-01), as amended by MDE's December 20, 2011 letter removing 
COMAR 20.79.01.07, strengthens Maryland's SIP by containing a permit 
program as required by Parts C and D of Title I of the CAA. However, we 
acknowledge that for the reasons stated below, the May 13, 2011 
submission (as amended on December 20, 2011) does not fully meet all 
CAA requirements for SIPs. Therefore, EPA is granting limited approval 
in accordance with section 110(k) of the CAA, 42 U.S.C. section 
7410(k).

A. Completeness Determinations

    The May 13, 2011 Maryland SIP submission, as amended December 20, 
2011, does not contain a requirement for the PSC to conduct 
completeness determinations for CPCN applications. Pursuant to 40 CFR 
51.166(q)(1), a state SIP must require the permitting authority ``to 
notify all applicants within a specified time period as to the 
completeness of the application or any deficiency in the application or 
information submitted.'' See 40 CFR 51.166(q)(1). However, as discussed 
more thoroughly in EPA's Response to Comments in Section IV below, we 
believe the PSC is complying with this requirement in its practice for 
issuing

[[Page 6965]]

CPCNs such that the impact on CPCN applicants is minimized.

B. Permit Documents in One Location for Public Access

    The May 13, 2011 Maryland SIP submission, as amended December 20, 
2011, does not contain a requirement for the PSC to make available for 
public inspection in one location the documents from a CPCN applicant 
and the reviewing agency's analysis of the effect on air quality from 
the proposed construction or modification at an electric generating 
station. Pursuant to 40 CFR 51.161(a) and (b)(1), a state SIP shall 
provide for the ``[a]vailability for public inspection in at least one 
location in the area affected of the information submitted by the owner 
or operator and of the State or local agency's analysis of the effect 
on air quality.'' See 40 CFR 51.161(a) and (b)(1). As discussed more 
thoroughly in EPA's Response to Comments in Section IV below, EPA 
believes the PSC provides in its practice the opportunity for public 
review of this information through the availability of such documents 
on its Web site. Therefore, the impact on the public's opportunity to 
comment meaningfully is minimized. When the PSC amends its regulations 
to include the requirements of 40 CFR 51.161(a) and (b)(1) and 
51.166(q)(1), MDE may submit the revised regulations for EPA's 
consideration for full approval of the permitting program for electric 
generating stations in the Maryland SIP.

IV. EPA's Response to Comments Received on the Proposed Action

    EPA received a single set of relevant comments on its August 4, 
2011 (76 FR 47090) proposed action to approve revisions to the Maryland 
SIP. These comments, provided by the Environmental Integrity Project 
(hereinafter referred to as ``the Commenter''), raised concerns with 
regard to EPA's August 4, 2011 proposed action. A full set of these 
comments is provided in the docket for today's final action. A summary 
of the comments and EPA's responses are provided below.
    Generally, the Commenter raised four areas of concern. First, the 
Commenter asserts that the proposed revision to the Maryland SIP does 
not require compliance with NSR requirements in the CAA. Second, the 
Commenter asserts the proposed revision to the Maryland SIP allows the 
PSC, the air permitting agency for electric generating stations in 
Maryland, to waive or modify regulatory requirements. Third, the 
Commenter asserts the proposed Maryland SIP revision does not meet 
minimum requirements in the CAA for public participation, does not 
protect the public's right to review and comment on draft permits, and 
does not require the PSC to respond to comments. Finally, the Commenter 
asserts the proposed Maryland SIP revision does not contain formal 
requirements for completeness determinations. EPA's response to these 
four comments is provided below.
    Comment 1: The Commenter asserts the proposed revision to the 
Maryland SIP ``does not clearly and unambiguously mandate compliance 
with New Source Review standards under the Clean Air Act.'' The 
Commenter cites to section 110(a)(2)(C) of the CAA, 42 U.S.C. section 
7410(a)(2)(C), which requires SIPs to include a permit program as 
required by parts C and D of the CAA for PSD and NSR. The Commenter 
also cites to 40 CFR 51.166(j) which includes requirements that SIPs 
provide certain requirements, including, but not limited to, 
requirements that major stationary sources or major modifications meet 
applicable emission limitations under 40 CFR parts 60 and 61 and apply 
best available control technology (BACT) for each regulated NSR 
pollutant they would have the potential to emit in significant amounts 
or for each regulated NSR pollutant for which there is a significant 
net emissions increase. The Commenter cites to 40 CFR 
51.166(a)(1)(7)(ii) (requiring each SIP to incorporate requirements of 
40 CFR 51.166(j)-(r)) and to section 165(a)(2) of the CAA, 42 U.S.C. 
section 7475(a)(2), which requires major emitting facilities to receive 
permits prior to construction.
    Response 1: EPA does not agree with the Commenter that the Maryland 
SIP revision does not meet the above requirements. Section 110(a)(2)(C) 
of the CAA, 42 U.S.C. section 7410(a)(2)(C), requires each SIP to 
include a permits program as required in parts C and D of the CAA (42 
U.S.C. sections 7470-7492 and 7501-7515). 40 CFR 51.166 provides 
further details on the requirements for the permits programs. EPA 
believes the statutory and regulatory requirements in the May 13, 2011 
Maryland SIP submission, as amended December 20, 2011, fulfill the 
requirements of section 110(a)(2)(C) and 165(a)(2) of the CAA and 40 
CFR 51.166.
    Pursuant to Md. Code Ann., Public Utilities Cos. sections 7-205 and 
7-207, electric generating stations may not be modified or constructed 
without receiving prior approvals from the PSC through the PSC's 
issuance of a permit which is known as a CPCN. Section 7-207 requires 
electric generating stations to obtain CPCNs from the PSC prior to 
construction. Section 7-205 requires electric generating stations to 
obtain approval from the PSC prior to commencing a modification to the 
generating station. ``Approval'' as used in the Maryland statutory 
provision (section 7-205) means a CPCN issued pursuant to sections 7-
207 and 7-208. See COMAR 20.79.01.02(4). The Maryland statutory 
provisions in sections 7-207 and 7-208 which EPA proposed to include in 
the Maryland SIP contain specific requirements for the issuance of 
CPCNs. In particular, section 7-208(f)(1) states that the PSC shall 
include in each certificate it issues ``(i) the requirements of the 
federal and State environmental laws and standards that are identified 
by the Department of the Environment; and (ii) the methods and 
conditions that the Commission determines are appropriate to comply 
with those environmental laws and standards.'' Section 7-208(f)(2) 
provides that the PSC ``may not adopt any method or condition under 
paragraph (1)(ii) of this subsection that the Department of the 
Environment determines is inconsistent with federal and State 
environmental laws and standards.''
    The Maryland regulatory provisions EPA is limitedly approving in 
the SIP revision further fulfill the Clean Air Act requirements for 
SIPs. COMAR 20.79.03.02 contains the requirements for applications for 
CPCNs and requires applicants for CPCNs to include in CPCN applications 
a description of the effect on air quality including the ability of the 
applicant to comply with PSD and NSR provisions, a description of the 
impact on PSD areas and nonattainment areas, and all information and 
forms required by MDE regulations for permits to construct and 
operating permits under COMAR 26.11. Further, COMAR 20.79.01 contains 
additional requirements for electric generating stations applying for 
CPCNs including requirements for when modifications need CPCNs.
    EPA disagrees with the Commenter's claim that the Maryland SIP 
revision does not meet the requirements of 40 CFR 51.166. EPA believes 
the revision meets 40 CFR 51.166 through the statutory and regulatory 
requirements identified above. As previously discussed, COMAR 
20.79.03.02 requires CPCN applicants to identify relevant requirements 
of the CAA. Section 7-208(f) requires inclusion of federal 
environmental laws and standards identified by MDE which is the 
Maryland environmental agency which implements PSD and NSR as well as 
all requirements of the CAA for all sources in Maryland except electric 
generating

[[Page 6966]]

stations. Because the Maryland SIP as implemented through MDE requires 
sources to apply BACT or Lowest Achievable Emissions Rate at COMAR 
26.11.06.14 and 26.11.17, because CPCN applicants identify requirements 
of the CAA needed for construction or modification projects, and 
because the emissions standards and standards of performance under 40 
CFR Parts 60 and 61 would be identified by MDE through section 7-
208(f), EPA believes the Maryland SIP revision meets the requirements 
of 40 CFR 51.166 as specifically identified by the Commenter, except as 
discussed below regarding 40 CFR 51.161(b)(1) and 51.166(q)(1) 
(relating to availability of permit documents and completeness 
determinations).
    EPA believes that the statutory provisions in sections 7-205, 7-
207, and 7-208 and the regulatory provisions in COMAR 20.79 contain the 
required and necessary permits program for PSD and NSR as required in 
sections 110(a)(2)(C) and 165(a)(2) of the CAA, 42 U.S.C. sections 
7410(a)(2)(C) and 7475(a)(2), and by 40 CFR 51.166. The Maryland 
provisions included in the SIP revision require CPCNs prior to 
construction or modification of electric generating stations. See 
sections 7-205, 7-207, and 7-208. In addition, section 7-208(f) 
specifically requires the PSC to include in CPCNs federal environmental 
requirements identified by MDE. MDE implements the SIP approved PSD and 
NSR permit program for sources other than electric generating stations 
in Maryland through COMAR 26.11.06.14 and 26.11.17.
    Comment 2: The Commenter asserts the proposed revisions to the 
Maryland SIP contain a provision which allows the PSC authority to 
waive CAA requirements in COMAR 20.79. See COMAR 20.79.01.07. The 
Commenter asserts that the CAA requires a SIP to unambiguously require 
an applicant for a CPCN to comply with NSR requirements such as BACT. 
The Commenter asserts that the PSC has ``extremely broad authority to 
waive or modify any of the regulatory provisions in Title 20, 
Subchapter 79, which governs the CPCN application process.'' The 
Commenter asserts that the letter submitted by the Secretary of MDE to 
the Regional Administrator of EPA Region III on July 15, 2011 stating 
that MDE would ensure that the PSC does not issue waivers or 
modifications not in compliance with the CAA and federal regulations 
was not sufficient to serve as a binding requirement on the state to 
ensure CPCN applicants comply with NSR requirements. The Commenter 
asserts that section 7-208(f) is insufficient to show that NSR 
requirements will be included in all CPCNs because section 7-208 
``appears to apply only to the construction of an EGU when either (1) 
associated overhead transmission lines designed to carry a voltage in 
excess of 69,000 volts are also being constructed; or (2) the entity 
constructing the EGU is exercising the right of condemnation in 
connection therewith.'' See section 7-208(a).
    Response 2: EPA notes that in a December 20, 2011 letter from 
Robert M. Summers, Secretary of MDE, to Shawn M. Garvin, Regional 
Administrator, EPA Region III, MDE officially withdrew COMAR 
20.79.01.07 from MDE's proposal for inclusion in the Maryland SIP. In 
taking final action on Maryland's proposed SIP revision, EPA is acting 
on the remaining statutes and regulations submitted by Maryland. 
Therefore, EPA's limited approval of the PSC permitting program for 
electric generating stations does not include COMAR 20.79.01.07 and 
that provision is not included in the Maryland SIP.
    Nevertheless, EPA disagrees with the Commenter in general on the 
waiver issue and believes the Letter from Robert M. Summers, Secretary 
of MDE, to Shawn M. Garvin, Regional Administrator, EPA Region III 
(July 15, 2011) provides assurances that MDE will ensure that its 
sister Maryland agency, the PSC, will include all necessary PSD and NSR 
requirements as required by section 7-208(f). EPA believes that the 
PSC's waiver authority in COMAR 20.79.01.07 is clearly restricted by 
the statutory restraint on the PSC's CPCN authority in section 7-208(f) 
which provides that the PSC shall include federal environmental laws 
and standards identified by MDE in CPCNs. This statutory restraint is 
clearly evident from the plain language of the statute. The July 15, 
2011 Letter from Robert M. Summers to EPA confirms the statutory 
limitation on the PSC's waiver authority. EPA has given considerable 
weight to the Summers' July 15, 2011 letter because MDE has expertise 
in interpreting Maryland law. Presently, EPA has no reason to believe 
the PSC will exercise its waiver authority to issue CPCN's without 
environmental requirements identified by MDE contrary to section 7-
208(f). In addition, as of December 20, 2011, the PSC's waiver 
authority in COMAR 20.79.01.07 was removed from Maryland's proposed SIP 
revision and is therefore not included in EPA's limited approval of the 
Maryland permitting program for electric generating stations. 
Therefore, EPA believes the Maryland SIP revision meets the 
requirements of the CAA for the limited approval.
    Additionally, EPA disagrees with the Commenter that section 7-208 
does not apply to the construction and modification of all electric 
generating stations in Maryland. EPA believes the Commenter's assertion 
is contrary to established Maryland case law. Section 7-207 was 
originally codified as Maryland Ann. Code, Article 78, section 54A 
(1968), and section 7-208 was previously codified as Maryland Ann. 
Code, Article 78, section 54B (1971). In Baltimore Gas & Electric Co. 
v. Dept. of Health & Mental Hygiene, 284 Md. 216, 225-26 (1979), the 
Maryland Court of Appeals interpreted Maryland Ann. Code, Article 78, 
sections 54A and 54B as providing a comprehensive plan for the erection 
of new power plants. The Maryland Court of Appeals stated section 54A 
prohibited construction of a generating station or overhead 
transmission line without first obtaining a CPCN and also found that 
section 54B (the predecessor of Md. Ann. Code, Public Utilities Co. 
section 7-208) simply provided the procedures for obtaining a CPCN 
under section 54A (now codified as section 7-207). Id. Likewise, today, 
section 7-207 requires CPCNs prior to construction of electric 
generating stations, and section 7-208 provides the detailed 
requirements for those CPCNs.
    Further, COMAR 20.79.01.02(B)(4) clearly confirms that CPCNs issued 
for modification projects would be CPCNs issued pursuant to 
requirements in sections 7-207 and 7-208. Because Maryland case law 
found that Maryland Ann. Code, Article 78, sections 54A and 54B (now 
codified as sections 7-207 and 7-208) apply to construction of 
electrical generating stations or transmission lines and because the 
Maryland regulations included in the SIP revision state that section 7-
208 applies also to modifications, EPA does not believe the Commenter's 
assertion is valid or a correct interpretation of Maryland law.
    Comment 3: The Commenter asserts the proposed Maryland SIP 
revisions do not meet minimum standards for public participation set 
forth in the CAA and do not protect the public's right to review and 
comment on a draft CPCN. The Commenter also states the PSC does not 
allow for sufficient time for response to public comments. The 
Commenter asserts the proposed SIP revision does not contain a formal 
process for ensuring the PSC responds to comments and asserts the 
letter from H. Robert Erwin, Jr., General Counsel, PSC, to Robert M. 
Summers, Secretary, MDE (January 25, 2011) is inadequate to

[[Page 6967]]

establish an independent obligation under the SIP on the PSC to respond 
to comments during the CPCN permitting process. The Commenter asserts 
that the CAA requires a public hearing and an opportunity for public 
comment during the NSR permit process and that the permitting agency 
must make available to the public information submitted by the owner or 
operator of the applicant as well as the permit agency's analysis of 
the effect on air quality and the draft approval in at least one 
location. See 40 CFR 51.161(a), 51.161(b), and 51.166(q). The Commenter 
states the SIP must provide at least 30 days for public comments. 40 
CFR 51.161(b)(2). The Commenter asserts that the Md. Code Ann., Pub. 
Util. Cos. section 7-207(d) and related regulations do not meet these 
requirements.
    Response 3: EPA agrees with the Commenter that the CAA does require 
public participation in NSR permitting, including the right to review 
documents. However, EPA disagrees with the Commenter regarding the 
proposed Maryland SIP revision because EPA believes the Maryland SIP 
revision meets the requirements of the CAA for public participation 
with the exception of the requirement for the SIP to require the 
permitting agency to make available to the public in at least one 
location information submitted by the owner or operator of the 
applicant as well as the permit agency's analysis of the effect on air 
quality and the draft approval. See 40 CFR 51.161(a) and (b)(1).
    Sections 7-207(c) and (d) and 7-208(d) contain the CAA's public 
participation requirements for SIPs. As discussed above, sections 7-207 
and 7-208 apply to CPCNs for construction as well as for modification 
of electric generating stations. Section 7-207(c) and (d) require the 
PSC to provide notice of an application for a CPCN to all interested 
persons, to provide an opportunity for public comment, and to hold a 
public hearing on the CPCN application. Section 7-207(d) also requires 
weekly notice of the public hearing and opportunity for comment in a 
newspaper of general circulation in the four weeks prior to a hearing. 
Section 7-208(d) requires the PSC to provide notice to all interested 
persons upon receipt of an application for a CPCN and to hold a public 
hearing as required by section 7-207 upon publication of proper notice.
    However, EPA agrees with the Commenter that a SIP must require the 
permitting agency to make available to the public in at least one 
location information submitted by the permit applicant as well as the 
permit agency's analysis of the effect on air quality and the draft 
approval. See 40 CFR 51.161(a) and (b)(1). As explained in this 
rulemaking, EPA is granting limited approval to the Maryland SIP 
revision until such time as MDE submits a statutory or regulatory 
requirement that meets the requirements of 40 CFR 51.161(a) and (b)(1). 
EPA is granting this limited approval to the Maryland SIP revision 
because EPA believes the PSC in practice is providing the public with 
full access to the public information submitted by a CPCN applicant as 
well as the PSC's and MDE's analysis of the effect on air quality from 
an application. All public records relevant to a CPCN application and 
the PSC's official actions on those applications are available to the 
public for review and download through access to the PSC's publicly 
available Web page at http://www.psc.state.md.us/. The purpose of 
providing an opportunity for public review is served by this method of 
availability such that EPA is granting a limited approval until the PSC 
and MDE include such a requirement in a request for SIP revision.
    In addition, we gain additional assurance that the public will have 
available for inspection information submitted by a CPCN applicant and 
associated PSC analyses through the PSC's statutory obligation to 
comply with the Maryland Public Information Act, Md. Code Ann., State 
Government sections 10-611 to 10-630. The Maryland Public Information 
Act applies to all branches of the Maryland state government and 
provides persons the right to review the available records that are 
disclosable by the State and the right to obtain copies of those 
records. This statute provides that all persons are entitled to access 
to information about the affairs of government and the official acts of 
public officials and employees. See Maryland Public Information Act, 
section 10-612(a). The Maryland Public Information Act permits persons 
to inspect public records at any reasonable time within thirty days of 
a request and provides a process for persons to challenge the 
withholding of public documents. See Maryland Public Information Act, 
sections 10-614 and 10-623.
    EPA believes these statutory obligations as well as the practice of 
making documents publicly available over the PSC's Web page meet the 
intent of the requirements for SIPs in the CAA and in the regulations 
at 40 CFR 51.161 and 51.166. Hence, EPA is granting limited approval to 
this SIP revision until such time as Maryland submits a statutory or 
regulatory requirement meeting 40 CFR 51.161(a) and (b)(1).
    The Commenter also addressed the PSC's obligations to respond to 
public comments. In reviewing SIPs submitted for approval, EPA must 
follow the requirements in section 110 of the CAA and in 40 CFR 51.161 
and 51.166. The Maryland SIP revision meets these requirements. As 
discussed above, EPA believes the Maryland SIP revision provides for 
public hearings for CPCNs and an opportunity for public comment as 
required by section 165(a)(2) of the CAA and 40 CFR 51.161. The PSC in 
its practice makes available to the public all information including 
the CPCN application as required by 40 CFR 51.161(a) and (b) and 
51.166(q) through complying with Md. Code Ann., Public Utilities Cos. 
sections 7-207 and 7-208 and complying with its statutory mandate in 
the Maryland Public Information Law. In addition, the PSC provides 
further public access to documents relevant to CPCN obligations via its 
publically-available docket on the PSC's Web site. While the Maryland 
Public Information Law and the PSC's Web site are not included in the 
SIP revision, EPA believes that the PSC is obligated to act in 
accordance with these obligations and that the PSC's practice in using 
the Web site strengthens public participation.
    If these public access provisions and policies were to be repealed 
or substantially changed, EPA would reevaluate the limited approval of 
the SIP revision.
    EPA reviews SIPs for their compliance with requirements in the CAA 
and in the implementing regulations. EPA agrees with the Commenter that 
responding to comments is essential to ensuring adequate public 
participation. However, EPA disagrees with the Commenter that the 
Maryland provisions for electric generating stations are not SIP 
approvable. EPA has previously stated that adequate public 
participation and comment requires air permitting agencies to address 
and respond to public comment. See In the Matter of Onyx Environmental 
Services, Petition V-2005-1 at 7 (February 1, 2006) (citing Home Box 
Office v. FCC, 567 F.2d 9, 35 (DC Cir. 1977) (stating ``the opportunity 
to comment is meaningless unless the agency responds to significant 
points raised by the public''). See also In the Matter of Citgo 
Refining and Chemicals Co. L.P., Petition VI-2007-01 at 7 (May 28, 
2009) (stating permitting authorities have a responsibility to respond 
to significant comments); In the Matter of Kerr-McGee Gathering, LLC, 
Petition VIII-2007 at 4; In the Matter of Wheelabrator, Baltimore L.P., 
Permit 24-510-01-886 at 7 (April 14, 2010).

[[Page 6968]]

EPA believes an essential correlative in taking public comment on 
permits is responding to those comments such that an adequate record of 
the permit issuer's rationale is created. Responding to public comments 
ensures meaningful public participation in permitting as intended by 
the Clean Air Act.
    In response to EPA's concerns regarding the PSC's responding to 
comments on CPCN applications, the General Counsel for the PSC did 
state in his January 25, 2011 letter to EPA referred to previously that 
interested persons would be able to raise to a PSC Hearing Examiner, 
during a prehearing scheduling conference which is part of the CPCN 
review process, any failure by the PSC to respond to public comments 
and the need for adequate time for the PSC to respond to comments in a 
scheduling order. See Robert Erwin's January 25, 2011 letter to MDE. In 
addition, the PSC's General Counsel stated that the failure to respond 
to comments could be brought to the PSC's attention before a CPCN 
becomes final during the CPCN approval hearing process. Id. EPA 
believes the commitment to respond to comments from the PSC's General 
Counsel as evidenced in the General Counsel's January 25, 2011 letter 
satisfies EPA's concerns that the PSC will respond to public comments 
on CPCN applications. EPA believes the Maryland SIP revision provides 
for full public participation as required by sections 110 and 165 of 
the CAA and its implementing regulations at 40 CFR 51.161 and 51.166 
(with the exception of providing public access to documents in one 
location as discussed above). See id.
    Comment 4: Finally, the Commenter asserts that the proposed 
Maryland SIP revision does not contain a requirement that the permit 
reviewing authority (the PSC) shall notify all permit applicants within 
a specified time period as to the completeness of the permit 
application or any deficiency in the application as required in 40 CFR 
51.166(q)(1).
    Response 4: EPA agrees with the Commenter that the Maryland SIP 
revision does not formally contain a requirement directly meeting 40 
CFR 51.166(q)(1). EPA is granting limited approval to the PSC 
permitting program in the Maryland SIP until Maryland submits a 
regulation meeting 40 CFR 51.166(q)(1) (as well as 40 CFR 51.161(a) and 
(b)(1) as discussed previously). However, EPA has granted limited 
approval because EPA is satisfied that the PSC is meeting this 
requirement in practice. EPA believes the revised Maryland SIP as 
implemented by the PSC will appropriately address CPCN completeness 
determinations. According to 40 CFR 51.166(q)(1), a SIP shall provide 
that the ``reviewing authority shall notify all applicants within a 
specified time period as to the completeness of the application or any 
deficiency in the application or information submitted.'' EPA believes 
the General Counsel's January 25, 2011 letter addresses this issue. See 
Robert Erwin's January 25, 2011 letter to MDE. The PSC's General 
Counsel stated in the January 25, 2011 letter that parties should raise 
the issue of completeness determinations with the PSC Hearing Examiner 
at the Prehearing Scheduling Conference which is held during the CPCN 
application review process. The General Counsel stated that the PSC's 
Hearing Examiner for each CPCN application would hear argument and make 
a determination as to completeness of applications and subsequently 
either order an incomplete CPCN application be supplemented or make a 
finding on the record that a CPCN application was complete. See id. We 
believe the PSC provides adequate opportunities during the CPCN 
application process for parties to raise the issue of incomplete CPCN 
applications.
    In addition, the statutory and regulatory provisions in the 
proposed Maryland SIP revision support EPA's belief that the PSC will 
act on completeness determinations. Pursuant to section 7-205(d), the 
PSC must render a decision on a CPCN application within 150 days of the 
filing of the CPCN application. See Md. Code Ann., Public Util. Cos. 
section 7-205(d). In addition, section 7-207(d) provides the 
requirements for the PSC to hold public hearings on CPCN applications, 
and section 7-208(e) follows along with the requirements in section 7-
207(d) by requiring the PSC to grant or deny CPCN applications within 
90 days of the conclusion of the hearings on the CPCN applications. 
Finally, the PSC's implementing regulations at COMAR 20.79.02.03, 
require the PSC to impose a schedule of procedural dates to ensure 
timely completion of the CPCN application process. Reading these 
statutory and regulatory provisions together with the PSC General 
Counsel's January 25, 2011 letter, EPA believes the Maryland SIP 
revision together with the PSC's implementation as described above 
satisfies the intent of 40 CFR 51.166(q)(1) sufficient for EPA to 
provide limited approval to the Maryland SIP revision until Maryland 
submits a regulation from the PSC for SIP approval formally addressing 
the requirements of 40 CFR 51.166(q)(1).
    Furthermore, EPA believes the requirements of 40 CFR 51.166(q)(1) 
are intended to protect the interests of permit applicants in receiving 
timely review of permit applications. EPA does not believe that the 
Commenter is adversely affected by the PSC's failure to do a 
completeness determination on a particular CPCN. EPA has no reason to 
believe that the PSC is not conducting completeness determinations as 
discussed by the PSC's General Counsel and has received no adverse 
comment on this issue from the regulated and impacted community of 
electric generating stations.
    Finally, EPA notes that the Commenter included additional 
statements in its Comments relating to CPCNs issued previously by the 
PSC and the federal enforceability of those CPCNs. To the extent that 
these comments do not relate to the Maryland SIP revision and are not 
relevant to EPA's limited approval of the SIP revision, EPA is not 
responding to those Comments here.

V. Final Action

    EPA is granting limited approval in accordance with section 110(k) 
of the CAA, 42 U.S.C. section 7410(k), of MDE's May 13, 2011 SIP 
submission (11-01), as amended on December 20, 2011 with the 
removal of COMAR 20.79.01.07, because the submission as amended 
strengthens Maryland's SIP. When the PSC adopts amended regulations 
which meet the requirements of 40 CFR 51.161(a) and (b)(1) and 
51.166(q)(1), MDE may request full SIP approval of the permitting 
program for construction and modification of electric generating 
stations in Maryland.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions

[[Page 6969]]

of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by April 10, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action.
    This action pertaining to preconstruction requirements for Electric 
Generating Stations in Maryland may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: January 31, 2012.
W.C. Early,
Acting, Regional Administrator, Region III.
    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart V--Maryland

0
2. In Sec.  52.1070, the table in paragraph (c) is amended by:
0
a. Revising the heading of the table.
0
b. Revising the existing entries for COMAR 26.11.02.09 and 26.11.02.10.
0
c. Adding entries for COMAR 20.79.01, 20.79.02 and 20.79.03 in 
numerical order after the existing entry for COMAR 03.03.06.06.
0
d. Adding new entries for ``Public Utility Companies Article of the 
Annotated Code of Maryland'' at the end of the table.
    The amendments read as follows:


Sec.  52.1070  Identification of plan.

* * * * *
    (c)* * *

                 EPA-Approved Regulations, Technical Memoranda, and Statutes in the Maryland SIP
----------------------------------------------------------------------------------------------------------------
                                                                                                  Additional
 Code of Maryland administrative                             State                               explanation/
   regulations (COMAR) citation       Title/subject     effective date   EPA approval date    citation at 40 CFR
                                                                                                   52.1100
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                 26.11.02 Permits, Approvals, and Registrations
----------------------------------------------------------------------------------------------------------------
26.11.02.09......................  Sources Subject to         11/16/09  2/10/12 [Insert      Revised
                                    Permits to                           page number where    26.11.02.09A(1),
                                    Construct and                        the document         (2); limited
                                    Approvals.                           begins].             approval.
26.11.02.10......................  Sources Exempt from        11/16/09  2/10/12 [Insert      Revised
                                    Permits to                           page number where    26.11.02.10A;
                                    Construct and                        the document         limited approval.
                                    Approvals.                           begins].
 
 
----------------------------------------------------------------------------------------------------------------
 

[[Page 6970]]

 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
      20.79.01 Applications Concerning the Construction or Modification of Generating Stations and Overhead
                                           Transmission Lines--General
----------------------------------------------------------------------------------------------------------------
20.79.01.01A, .01C, and .01D.....  Scope..............        12/28/09  2/10/12 [Insert      Added; limited
                                                                         page number where    approval.
                                                                         the document
                                                                         begins].
20.79.01.02A and .02B(1) through   Definitions........        12/28/09  2/10/12 [Insert      Added; limited
 (13), (14)(a), (15), (16), and                                          page number where    approval.
 (18) through (20).                                                      the document
                                                                         begins].
20.79.01.06......................  Modifications to           12/28/09  2/10/12 [Insert      Added; limited
                                    Facilities at a                      page number where    approval.
                                    Power Plant.                         the document
                                                                         begins].
----------------------------------------------------------------------------------------------------------------
      20.79.02 Applications Concerning the Construction or Modification of Generating Stations and Overhead
                                  Transmission Lines--Administrative Provisions
----------------------------------------------------------------------------------------------------------------
20.79.02.01......................  Form of Application         2/10/97  2/10/12 [Insert      Added; limited
                                                                         page number where    approval.
                                                                         the document
                                                                         begins].
20.79.02.02......................  Distribution of            2/10/97;  2/10/12 [Insert      Added; limited
                                    Application.               11/8/04   page number where    approval.
                                                                         the document
                                                                         begins].
20.79.02.03......................  Proceedings on the         2/10/97;  2/10/12 [Insert      Added; Limited
                                    Application.               11/8/04   page number where    approval.
                                                                         the document
                                                                         begins].
----------------------------------------------------------------------------------------------------------------
      20.79.03 Applications Concerning the Construction or Modification of Generating Stations and Overhead
                     Transmission Lines--Details of Filing Requirements--Generating Stations
----------------------------------------------------------------------------------------------------------------
20.79.03.01......................  Description of             2/10/97;  2/10/12 [Insert      Added; limited
                                    Generating Station.        11/8/04   page number where    approval.
                                                                         the document
                                                                         begins].
20.79.03.02A and .02B(1) and (2).  Environmental              2/10/97;  2/10/12 [Insert      Added; limited
                                    Information.               11/8/04   page number where    approval.
                                                                         the document
                                                                         begins].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
    Annotated Code of Maryland        Title/subject          State       EPA approval date        Additional
             citation                                   effective date                           explanation/
                                                                                              citation at 40 CFR
                                                                                              52.1100
----------------------------------------------------------------------------------------------------------------
                       Public Utility Companies Article of the Annotated Code of Maryland
----------------------------------------------------------------------------------------------------------------
Section 7-205....................  Electric Companies--        7/01/06  2/10/12 [Insert      Added; limited
                                    Modification of                      page number where    approval.
                                    Power Plant.                         the document
                                                                         begins].
Section 7-207(a), (b)(1), (c),     Generating Stations         7/01/07  2/10/12 [Insert      Added; limited
 (d), and (e).                      or Transmission                      page number where    approval.
                                    Lines--General                       the document
                                    Certification                        begins].
                                    Procedure.
Section 7-207.1(a) and (e).......  Generating Stations         7/01/07  2/10/12 [Insert      Added; limited
                                    or Transmission                      page number where    approval.
                                    Lines--Onsite                        the document
                                    Generated                            begins].
                                    Electricity;
                                    Approval Process.
Section 7-208 (a)(1), (b) through  Generating Stations         7/01/01  2/10/12 [Insert      Added; limited
 (f), and (h)(2).                   or Transmission                      page number where    approval.
                                    Lines--Joint                         the document
                                    Construction of                      begins].
                                    Station and
                                    Associated Lines.
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2012-2984 Filed 2-9-12; 8:45 am]
BILLING CODE 6560-50-P