Northeast 

Maryland 

Waste 

Dis osal 

Authority 

VIA U.S. MAIL AND EMAIL 

Ms. Deborah Rabin, Regulations Coordinator 

Air and Radiation Management Administration 

Maryland Department of the Environment 

1800 Washington Boulevard, Suite 730 

Baltimore, Maryland 21230 

drabin@mde.state.md.us 

February 16, 20 II 

RE: Comments on Notice of Proposed Action Regarding the U.S. Environmental Protection Agency's 

Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule 

Dear Ms. Rabin: 

I am writing on behalf of the Northeast Maryland Waste Disposal Authority ("NMWDA") 

regarding the Maryland Department of the Environment's (the "Department") Notice of Proposed 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 

(collectively the "Proposed Regulations"). See 38:2 Md. R. 101-04. The NMWDA supports the 

Department's efforts to implement the requirements of the Environmental Protection Agency's ("EPA") 

greenhouse gas tailoring rule (the "Tailoring Rule"). However, it wishes to bring to the Department's 

attention the recent 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 Regulations in accordance with the EPA announcement. 

EPA Administrator Lisa Jackson announced the decision by letter dated January 12, 2011 to 

Senator D. Stabenow (one of several identical letters, see attached as Exhibit I). It explains that by July I , 

2011, 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" and that, "[c]oncurrent with the 

proposal to defer application of the [PSD requirement] to biomass and other biogenic C02 emissions, EPA 

intends to issue interim guidance to help permitting authorities establish a basis for concluding that the 

[BACT] for greenhouse gas emissions at such sources is simply combustion of biomass fuels." 

Administrator Jackson explains that the deferral will allow EPA to obtain public comment and to 

thoroughly evaluate public comment and science surrounding biogenic emissions. Concurrent with its 

announcement in the Stabenow letter, EPA granted a related motion for reconsideration of the June 3, 2010 

Final Rule 's requirements pertaining to C02 emissions from biomass (see attached as Exhibit 2). 

Tower II - Suite 402,100 S. Charles Street. Baltimore, 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 ichael G. Marschn.er, Frederick Cou~ty f Robert B. ~ooper, H~rford Co.unty f James. M. ~v in, Howard County 

Daniel E. locke, Montgomery County f James M. Harkins, Maryland EnVironmental Service f Robin B. Davldov, Executive Director 

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 located 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 considers waste-to-energy facilities to utilize "biogenic 

activities or biomass combustion." See 75 Fed. Reg. 31514, 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 

GEN J 0484RLU.DOC 

Very truly yours, 

Robin B. Davidov 

Executive Director 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

The Honorable Debbie Stabenow 

United States Senate 

Washington, D.c' 20510 

Dear Senator Stabenow: 

JAN 122011 

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 of biomass combustion in determining the 

applicability of the pre-construction permitting requirement to C02 emissions 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 preconstruction permitting requirement to biomass and other biogenic C02 emissions. 

Internet Address (URl} . hllp:ftwww.epa,gov 

Recycled/Recyclable _ Printed with Vegetable Oil Based Inks on 100% Poslconsumer, Process Chlorine Free Recycled Paper 
The pwpose of the 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 of the 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 of January 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 of biomass 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 of biomass 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. 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, 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 

AlA AND RADIATION 

The US Environmental Protection Agency (EPA) has considered the petition you 

submitted on August 3, 2010, on behalf of the 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 of the 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 of the 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 of the reconsideration, EPA plans to effectuate a detailed 

examination ofthe science 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 of the science. Following the 

completion of the examination, EPA will use the examination's work product in establishing, by 

notice-and-comment rulemaking, the system for determining applicability of the 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 Address (URL) • http://www.epa,gov 

Recycled/Recyclable . Printed with Vegetable Oil Based Inks on 100% Postconsumer, Process Chlorine Free Recycled Paper 
establish a basis for concluding that the best available control technology (BACT) for C02 

emissions at such sources is simply combustion of biomass 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 of the 

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 of this 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 of PSD 

and Title V. 

EPA recognizes the importance of the 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