**Northeast** Maryland Waste Dis osal Authority 

### VIA U .S. MAIL AND EMAIL
Ms. Deborah Rabin, Regulations Coordinator Air and Radiation Management Admini stration Maryland Department of the Environment 1800 Washington Boulevard, Suite 730 Baltimore, Maryland 21230 drabin@mde.state.md
.us February 16 , 20 II



### RE: Co mm ents on Notice ofProp osed Action Regarding the U
.S
. Environmental Protection Agency's Prevention of Significant Deterioration and Title V Greenhou se Gas Tailoring Rule D ear Ms. Rabin : I am writing on behalf of the North eas t Maryland Waste Disposal Authority ("NMWDA") regardin g th e Maryland Department ofthe Environment' s (the " Department " ) Notice ofPropo sed Action to Amend Regulations .01 under COMAR 26.11.01 , Regulations .01 and .12 under COMAR 26
. 11.02 and Regulation .14 under COMAR 26.11.06; published in the January 14 , 2011, Maryland Register (co ll ecti ve ly the " Proposed Regulations "). See 

### 3 8:2 Md. R
. 101-04. The N MWDA supports the Department's ef fort s to implement the req uirem ents of the Environmental Protection Agency's ("EPA") greenhouse gas tailoring rule (the " Tailoring Rule "). However, it wi she s to bring to the Department 's attention the recen t decision of the EPA to provide a three year delay in the implementation of the Tailoring Rule for facilities which burn biomass or biogenic fuel and requests that the Department revise the Proposed Re gul ations in accordanc e with the EPA announcement. EPA Administrator Lisa Jackso n announced the deci si on by letter dated January 12 , 2011 to Senator D. Stabenow (one of several identical letters, see attached as Exhibit I)

. 

### It expl ain s that by July I , 

### 2011, E PA will " complete a rulemaking to defer for three years the application of the pre-con struction permitting requirement to biomass and other biogenic C02 emissions" and that, "[c]oncurrent with the prop osal to def er application ofthe [PSD requirement] to biomass and other biogenic C02 emissions, EPA intend s to is sue interim guidance to help permitting authorities establish a basis for concluding that the [BACT] for greenhouse gas emis sions at such source s i s simply combu stion of biomass fuels." Administrator Jackson explains that the deferral will allow EPA to obtain public comment and to thoroughly evaluate public comment and scienc e s urrounding biogenic emissions. Concurrent with its announcement in the Stabenow letter, EPA granted a related motion for reconsid erati on ofthe June 3, 2010 Final Rule 's r equirements pertaining to C02 emi ss ion s from biomas s (see attached as Exhibit 2).

Tower I I - Suite 402,100 S

. Charles Street. Balt i more , MD 21201 -2705 • (4 10) 333-2730, Fax (410 ) 333-2721 Website: www.nmwda.org/ E-mail: authority@nmwda.org I BusinesHo-Business Recycling Website: www.mdrecycles.org Comprehensive Waste Management Through ReC)tcling, Reuse, Resource Recovery and Landf i ll MEMBERS: Ronald E. Bowen, Anne Arundel County / David E
. Scott, Baltimore City / Edward C. Adams, Baltimore County J. Michael Evans, Carroll County I M i chael G. Marschn
.e r, Frederic k**Co u~ty**  f Robert B.**~ooper, H~rford**  Co.unty f James. M.**~v in,**  Howard County Daniel E. locke, Montgomery County f James M
. Hark in s, Mary l and EnVironmental Service f Robin B. Davldov, Executive D i rector
100% Recycled Paper 130% Pos/-Consumer

### Ms. Deborah Rabin February 16,2011 Page 2

NMWDA files these comments because the Proposed Regulations have implications for the three waste-to
-energy plants currently operating in Maryland, i.e. the ones loc ated in Baltimore City, Harford County and Montgomery County, and the new facility planned in Frederick County. NMWDA has an interest in all four facilities. EPA's Tailoring Rule con siders waste-to-energy facilities to utilize " biogenic activities or biomass combustion. " See 

### 75 Fed. Reg
. 3 1514 , 31590 (June 3 , 2010). Therefore, EPA ' s recent announced revision to the Tailoring Rule directly will affect them
. NMWDA requests that the Department delay finalizing the Proposed Regulations w1til EPA revises the Tailoring Rule as announced by Administrator Jackson, or in the alternative, include the three year extension announced by EPA. Please do not hesitate to contact me at 410.333.2730, ext. 110 or rdavidov@nmwda
.org with any questions
.

Attachments

G EN J0484RLU
. D OC 

### Very truly yours,

Robin B. Davidov Executive D irectorUNITED STATES E NV I RONMENTAL PROTECTION AGENCY WASHINGTON , D
.C

. 20460

The Honorable Debbie Stabenow United States Senate Washington, D.c' 20510 Dear Senator Stabenow: 

## JAN 1 22011 

## Exhibit 1

THE ADMINISTRATOR

Thank you for your recent letter about the way that carbon dioxide ("C02") emissions from biomass burning will 

### be treated in Clean Air Act permitting of construction projects at large stationary sources . As you know, biomass can 

### be part of a national strategy to reduce dependence on fossil fuels, and efforts are underway to foster the expansion of renewable resources and promote biomass as ways of addressing climate change and enhancing forest management. Last July, EPA solicited views from the public on approaches to accounting for C02 emissions from biomass and other biogenic sources, including whether some or all of a source ' s biomass C02 emissions could be discounted based on a determination that they are canceled out by the C02 absorption associated with growing the fuel. EPA received information supporting the conclusion that certain biomass

- such as waste materials whose inevitable decomposition will result in greenhouse gas emissions anyway - have only very limited climate impacts when combusted as fuel. EPA also, however, received information indicating that the use of certain other biomass as fuel could have more significant climate impacts. In November, EPA announced that it was reviewing the public's comments with the goal of deciding whether the Clean Air Act would allow the use of some kind of discounting system or other method reflecting the net impacts ofbiomass combustion in determining the applicability of the pre-construction permitting requirement to C02 emi ssions from biomassfired units. Your recent letter urges EPA to make a positive determination and to start a rulemaking promptly. As of January 2, 201 I, only those large stationary sources that trigger the preconstruction permitting requirement for other pollutants need to address greenhouse gases such as C02. No source will be subject to the pre-construction permitting requirement solely because ofits greenhouse gas emissions until after July 1,2011, That is one result of the Tailoring Rule that EPA issued last year, With the approach of July 1 in mind, I am announcing today that, by that date, EPA will complete a rulemaking to defer for three years the application of the pre construction permitting requirement to biomass and other biogenic C02 emissions.

In te rnet Addre ss ( URl } . hll p :ftwww.epa ,gov Recycled/Recyclable

_ Pri nted wi th Ve getab le Oi l Ba s ed I nks on 1 00% Poslconsu m er , Process Chlo rin e Fr ee Re cycled Pape rThe pwpose ofthe deferral is to give EPA time to effectuate a detailed examination of the science associated with biogenic C02 emissions and to consider the technical issues that the agency must resolve in order to account for biogenic C02 emissions in ways that are scientifically sound and also manageable in practice. EPA will ensure that partners within the federal government and scientists outside of it with relevant expertise play meaningful roles in the examination. Following the examination's completion, EPA will use its work product in establishing, by notice-and-comment rulemaking, the system for determining the applicability ofthe Clean Air Act's pre-construction permitting requirement to projects that result in biomass and other biogenic C02 emissions. EPA's intent is to ensure that both the scientific examination and the resulting rulemaking are completed within the three-year deferral period mentioned above. Concurrent with the proposal to defer application of the pre-construction permitting requirement (known as "Prevention of Significant Deterioration," or "PSD") to biomass and other biogenic C02 emissions, EPA intends to issue interim guidance to help permitting authorities establish a basis for concluding that the best available control technology (or "BACT," which is one of the statutory conditions for receiving a permit) for greenhouse gas emissions 

### at such sources is simply combustion of biomass fuels. As noted above, under the Tailoring Rule, as ofJanuary 2, 2011, large stationary sources that become subject to PSD for other pollutants will need to address greenhouse gases such as C02. If such permits are issued before July I, 20 II, then existing regulations might require that the permits meet the BACT requirement for greenhouse gas emissions during an interim period oftime. In guidance issued last November, EPA explicitly recognized that a permitting authority might determine that certain types ofbiomass by themselves are BACT for greenhouse gas emissions after considering the environmental, energy, and economic benefits of using the fuel. EPA's supplemental guidance will provide a basis that permitting authorities may use to support the conclusion, during the interim period, that BACT for C02 at such sources is simply the combustion ofbiomass fuel. I hope you will see the steps described in this letter as following through on my prior commitment to exercise whatever discretion the Clean Air Act affords to avoid discouraging the use of renewable, domestically-produced fuel in power plants and factories. If you have additional questions, please do not hesitate to contact me or to have your staff contact David McIntosh in EPA's Office of Congressional and Intergovernmental Relations.UN ITED STATE S ENV IRO NMENTA L PROTECTION AGENCY WASHI N GT O N, D.C. 20460

Roger R. Martella, Jr. Rachel D. Gray James W. Coleman SIDLEY AUSTIN, LLP 1501 K Street, NW Washington, DC 20005

## JAN**~1 2**  

# 2011

Dear Mr. Martella, Ms. Gray, and Mr
. Coleman: 

## Exhibit 2

OFFICE OF Al A AND R ADIATION

The US Environmental Protection Agency (EPA) has considered the petition you submitted on August 3, 2010, on behalfofthe National Alliance of Forest Owners (NAFO) asking the Agency to reconsider the implementation of the Prevention of Significant Deterioration (PSD) and Title V Greenhouse Gas (GHG) Tailoring Rule ("Tailoring Rule"), 75 Fed. Reg
. 31514 (June 3, 2010)
. 

### In addition, in the petition, you requested that pending reconsideration, the Administrator stay the application ofthe PSD and Title V permitting programs to emissions of carbon dioxide (C02) from biomass. EPA is granting the August 3rd Petition for Reconsideration. By July 1 , 2011, EPA will complete a rulemaking to defer for three years the application ofthe pre-construction and Title V permitting requirements to CO2 emissions from biomass-fired and other biogenic sources . The Agency will use this time to seek independent scientific analysis of the complex issues pertinent to the climate impacts of these emissions and to develop a rulemaking on how these emissions should be treated and accounted for in Clean 

### Air Act PSD and Title V permitting. More specifically, as part ofthe reconsideration, EPA plans to effectuate a detailed examination ofthe sc ience associated with C02 emissions from biomass-fired and other biogenic stationary sources and to consider the technical issues that the Agency must resolve in order to account for such CO2 emissions in ways that are scientifically sound and also manageable in practice. EPA will ensure that partners within the federal government and scientists outside of it with relevant expertise play meaningful roles in this examination ofthe science. Following the completion ofthe examination, EPA will use the examination's work product in establishing, by notice-and-comment rulemaking, the system for determining applicability ofthe Clean Air Act's pre-construction permitting requirement to projects that result in C02 emissions from biomassfired and other biogenic sources. EPA's intent is to ensure that both the scientific examination and the resulting rulemaking are completed within the three-year deferral period mentioned above. Concurrent with the proposal to defer application of PSD to C02 emissions from biomass-fired and other biogenic sources , EPA intends to issue interim guidance, applicable pending completion of the deferral rulemaking noted above , to help permitting authorities

Internet A ddress (URL) • http : //www.epa,gov Recyc led/Recyclable . Printed with Vegetable Oil Based Inks on 100% Postconsumer, Process Ch lorine Free Recyc led Pape restablish a basis for concluding that the best available control technology (BACT) for C02 emissions at such sources is simply combustion ofbiomass fuels. The Agency, however, is not granting the request for an administI:ative stay of the Tailoring Rule, because the rule is critical for making overall implementation of the PSD program feasible. Furthermore , an administrative stay of the statements in the preamble ofthe Tailoring Rule that describe EPA's initial determination not to exempt emissions of C02 from biomass would not provide the requested relief of excluding emissions of CO2 from biomass from application of the PSD and Title V permitting programs. The effect of a stay ofthis or any other aspect of the Tailoring Rule would be to return the legal regime that existed before EPA's issuance of a final rule. As no exemption for emissions of C02 from biomass existed prior to the final rule, an administrative stay would not result in an exemption from the requirements ofPSD and Title V. EPA recognizes the importance ofthe issues raised with respect to C02 emissions from biomass-fired and other biogenic sources and their treatment under the PSD Program. I believe this course of action will enable the Agency to duly consider the points raised by NAFO and other stakeholders with an interest in this important issue.

Gina McCarthy Assistant Administrator