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Electric Generating Stations in MarylandTechnical Support Document

FROM: David Talley 7j€ Office of Permits and Air Toxi s (3AP1O)

Air Protection Division

TO: Kathleen Cox, Associate Directd

Office of Permits and Air Toxics (3AP1

I. BACKGROUND

On May 13, 2011, the Maryland Department of the Environment (MDE) submitted a State

Implementation Plan (SIP) revision request to EPA. On July 15, 2011, MDE submitted a letter

to EPA as a supplement to its May 13, 2011 submittal. Both the May 13, 2011 submittal and theJuly 15, 2011 letter are in the docket for this proposed rulemaking. The MDE is the principalDepartment in the State of Maryland designated by the Governor as the official State air

pollution control agency responsible for implementing the Clean Air Act (CAA). The Maryland

Public Service Commission (PSC) is an agent ofthe State of Maryland and is an independent

unit in the Executive Branch of the government ofthe State of Maryland. The PSC regulatespublic utilities including electric 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 (CPCNs) for the construction and modification of electric generatingstations.

This SIP revision request consists of changes to the MDE Regulations .09 and .10 at COMARTitle 26.11.02. The MDE is also submitting to be approved into the Maryland SIP for first time,Public Utility Companies Article 7, 7-205, 7-207, 7-207.1 and 7-208, Annotated Code ofMaryland; Chapters 02 (Administrative Provisions) and 03 (Details of Filing Requirements)

under COMAR 20.79; and regulations .01, .02, .06, and .07 at COMAR 20.79.01. The MDE’s

May 13, 2011 SIP revision request also includes the January 25, 2011 letter from PSC General

Counsel H. Robert Erwin to Secretary Robert M. Summers of MDE, outlining the PSC’s processfor issuing completeness determinations for CPCNs. As this letter is part of the State’s May 13,

2011 official SIP revision request, it can be found in the docket for this proposed rulemakingaction. The process for determining an application complete, as outlined in the letter, is a

required element ofthe CPCN process.
regulatory requirements in Public Utility Companies Article and associated regulations in Title

20, subsection 79 of Maryland regulations that would require electric generating stations to

obtain a CPCN prior to construction. The latter provisions also require that all ofthe air quality

provisions that would otherwise be incorporated into a permit to construct or an approval issuedby MDE must be contained in a CPCN issued by the PSC.

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 remain subject to MDE’s preconstruction

permitting requirements. However, the current SIP-approved regulations at COMAR Title 26,

sections 26.11.02.09 and .10 exempt electric generating stations constructed or modified by

electric generating companies from MDE’s permitting regulations. Therefore, the current SIP

regulations are inconsistent with Maryland’s statutory provision in that they do not preserve

MDE’s permitting authority for electric generating stations that are not required to obtain a

CPCN. EPA is proposing to approve MDE’s May 13, 2011 SIP revision to amend COMAR

26.11.0209 and .10 to make Maryland’s SIP regulations consistent with Maryland’s statutory

provisions and to comply with the CAA.This proposed action to approve Maryland’s May 13, 2011 SIP revision will correct the

deficiencies in the Maryland SIP by eliminating the 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 airquality in areas designated as attainment or unclassifiable as required by Sections 110(a) and 161ofthe CAA and 40 CFR Part 51.166, and will ensure that the SIP provides for the attainment and

maintenance ofthe NAAQS. Section 110(a)(2)(C) ofthe CAA requires the State SIP to have aprogram for regulation of construction and modification ofsources including a permit program

as required by Part C for PSD and Part D for nonattainment NSR of Title I of the Act.

II. PROGRAM REVIEWMaryland Department of the Environment (MDE)

Table 1 -COMAR Title 26.11.02 Permits, Approvals, and Registration

The following is a brief summary ofthe changes enacted on November 16, 2009.

Section - Status Description

Regulation .09 Modified Requires electric generating stations to obtain a

Sources Subject preconstruction permit for activities not required to receive a

to Permits to Certificate of Public Convenience and Necessity (CPCN)

Construct and from the Maryland Public Service Commission (PSC) before

Approvals commencing construction. [COMAR 26.1 1 .02.09A-D]

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Approvals commencing construction. [COMAR 26.11.02.1OA

X]

Maryland Public Service Commission (PSC)

As stated previously, the PSC regulates public utilities including generating stations owned by

electric companies doing business in Maryland and is empowered by the state to issue CPCNs

for the construction and modification of electric generating stations. The regulatory and

statutory provisions that govern the PSC process are being proposed for inclusion into the SIP

for the first time. The Public Utility Companies Article’s provisions and the associated PSC

regulations under COMAR govern more than CAA requirements and air quality issues, and

CPCNs are issued by the PSC through an adjudicatory process unlike MDE’s preconstruction

permit review process. Therefore, we are proposing to approve into the SIP only thoseregulatory and statutory provisions that govern the PSC process which are necessary toimplement CAA requirements, and are taking no action on those portions of Maryland’s

submittal which are unrelated to requirements ofthe CAA. Descriptions ofthe regulatory andstatutory provisions that govern the PSC process being proposed for approval into the SIP are

provided in Tables 3 — 6, below. Table 7 identifies of those provisions in the May 13, 2011

submittal upon which EPA is not acting.

Table 3 -COMAR 20.79.01 General

The following is a brief summary ofthe additions. These regulations were enacted by the state

on December 28, 2009.

Section Status Description.01 New Scope: Defines who is subject to the subtitle. Approving 

.O1A, .O1C and .O1D only.

.02 New Definitions: Adding definitions for “Aesthetic site”,

“Applicant”, “Application”, “Approval”, Archeological site”,“Associated transmission line”, “Commence”,“Construction”, “Demand”, “Electric company”, “Generatingstation”, “Historic site”, “Linear facilities”, “Modification”(except as noted below), “On-site generated electricity”,

“Person”, “Project”, “Public airport”, “Regulated pollutant”,

[COMAR 20.79.0l.02A,B]

.06 New Modifications to the Facilities at a Power Plant. Requires

approval prior to commencing a modification at power

plants. [COMAR 20.79.0l.06A-D]

.07 New Waivers and Modifications

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.03 New Proceedings on the application.

Table 5 -COMAR 20.79.03: Details of Filing Reiuirements — Generating StationsThe following is a briefsummary of the additions. Chapter 03 was effective on February 10,

1997. Regulations .01 and .02B were amended, and .03 was adopted, effective November 8,

2004.

Section Status Description.01 New Description of Generating Station [COMAR 20.79.03.OIA-HJ.02 New Environmental Information. Approving .02A, and .02B(l),(2)

only

PSC Statutory Revisions Include the Following:

The May 13, 2001 SIP revision includes Sections 7-205, 7-207, 7.207.1, and 7-208 of the PublicUtility Companies Article of the Annotated Code of Maryland. The authority and procedures for

regulating the construction and modification of electric generating stations by the PSC resides inboth their regulations and their statute. Therefore, the relevant portions of the statute must be

included in the SIP to constitute a whole preconstruction permitting program. These additions

are being made to ensure conformance to CAA requirements.

Table 6- Public Utility Companies Article of the Annotated Code of Maryland

Section Status Description

§7-205 New Electric companies — Modification of power plant. All sections.§ 7-207 New Generating stations or transmission lines — General certification

procedure, SIP submittal includes sections (a), (b)(1), (c), (d), (e).

Excludes sections (b)(2) and (3), (f), (g), (h).

§ 7-207.1 New Generating stations or transmission lines — On-site generated

electricity; approval process, SIP submittal includes sections (a)and (e). Excludes sections (b), (c), (d).

§7-208 New Generating stations or transmission lines — Joint construction of

station and associated lines, SIP submittal includes sections(a)(1), (b), (c), (d), (e), (f), (h)(2). Excludes sections (a)(2), (g),(h)(l).

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Table 7- Provisions upon Which EPA is Taking No Action:

Section Regulation Description

20.79.0 1 .O1B Scope: applicability to overhead transmission lines

20.79.01 .02B(14)(b) Definitions: “modification” of overhead transmission lines

20.79.0 1 .02B(14)(c) Definitions: “modification” under §7-206 of the Public Utility

Company Article (7-206 is not part of the SIP revision)

20.79.01 .02B(17) Definitions: “Plan”20.79.01 .02B(2 1) Definitions: “Transmission Line”

20.79.03 .02B(3) Water quality issues

20.79.03 .02B(4) Wetland issues20.79.03 .02B(5) Waste management issues20.79.03 .03 “Condemnation”

III. PURPOSE OF THE JULY 15, 2011 LETTER FROM MDE TO EPA

As indicated in the Tables 3 and 4, the May 13, 2011 SIP revision request includes 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. The July 15, 2011 letter from Secretary Robert M. Summers of MDE to

Shawn M. Garvin, Regional Administrator of EPA Region III provides MDE’s assurances that

when the PSC implements these regulatory provisions, the Maryland Department ofthe

Environment, pursuant to its authority under the Public Utilities Company Article, Subsection 7-

208, paragraph (f); will ensure that no waivers, modifications or phased applications are issuedor accepted by the PSC that do not comply with the all applicable requirements of the federal

Clean Air Act and federal regulations.

IV. CONCLUSION

The May 13, 2011 SIP revision request amends MDE’s regulations and adds the appropriateregulations and statutes that govern the PSC. These revisions clarify the roles andresponsibilities both of MDE and the PSC with regard to permitting electric generating stations

in Maryland. They also clarify the permitting requirements applicable to electric generating

stations in Maryland. Approval of this SIP revision will remove deficiencies and inconsistencies

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20.79.02 (.01, .02, and .03) and COMAR 20.79.03 (.01 and .02), and the Public Utility

Companies statutory provisions of Article 7-205, 7-207, 7-207.1 and 7-208 as submitted to EPA

on May 13, 2011 be approved into the Maryland SIP except as noted in Table 7 ofthis TSD.

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