DEPARTMENT OF THE ENVIRONMENT 

AIR AND RADIATION MANAGEMENT ADMINISTRATION 

RESPONSE TO COMMENTS 

 for the 

PUBLIC HEARING held on February 15, 2011 

in BALTIMORE, MD 

Related to proposed amendments to: (1) Regulation .01 under COMAR 26.11.01 General 

Administrative Provisions; (2) Regulations .01 and .12 under COMAR 26.11.02 Permits, 

Approvals, and Registration; and (3) Regulation .14 under COMAR 26.11.06 General Emission 

Standards, Prohibitions, and Restrictions. 

Purpose of Hearing: The purpose of the hearing was to give the public an opportunity to 

comment on the proposed action that would implement the requirements of the U. S. 

Environmental Protection Agency’s (“EPA”) final Prevention of Significant Deterioration and 

Title V Greenhouse Gas Tailoring Rule ("Tailoring Rule"), which was published in the Federal 

Register on June 3, 2010 (75 FR 31514). 

Date and Location: The public hearing was held on February 15, 2011 at 10:00 a.m. at 1800 

Washington Boulevard, 1st Floor Conference Room, Baltimore, MD 21230. 

Hearing Officer: Kathleen Perry, Legislative Coordinator, Air and Radiation Management 

Administration, served as Hearing Officer. 

Attendance: No one attended the hearing. 

Statement: The Department's statement was submitted into the record by Deborah Rabin, 

Regulations Coordinator for the Air and Radiation Management Administration, Department of 

the Environment. 

Comments Received: Written comments were received from: Dominion, Northeast Maryland Waste 

Disposal Authority, and GenOn Energy Inc. 

Comments and Responses: The comments received by the Department during the 30-day comment 

period that relate to the proposed action have been summarized and the Department's responses are 

given below. 

1. COMMENT: The Tailoring Rule requires that Maryland adopt the necessary requirements. 

If it fails to do so, EPA may impose the requirements directly on Maryland sources through a 

Federal Implementation Plan (FIP). In a separate rulemaking, EPA has already proposed such a 

FIP. If implemented, we are concerned that such a FIP would result in dual permitting by EPA 

and MDE. This could significantly slow the issuance of permits and modifications as well as 

increase costs to Maryland businesses. Therefore, we support the expeditious promulgation of 

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Maryland's proposed regulatory revisions to include greenhouse gases in Title V and NSR PSD 

Permitting Programs and to amend the State Implementation Plan (SIP) for Air Quality to reflect 

these provisions. 

We are pleased that these proposed Maryland amendments are consistent with the 

Federal Tailoring Rule requirements and that, beyond the requirement to obtain a permit, the 

proposed amendments do not include any emissions standards or control requirements for 

greenhouse gases. 

RESPONSE: The Department is adopting these regulatory revisions as expeditiously as 

possible. As to the commenter’s concerns regarding EPA’s proposed FIP, either the FIP or the 

state regulation would apply to a state’s particular regulatory provision, but not both. Because 

Maryland has indicated that it would timely adopt regulations to implement EPA’s Tailoring 

Rule, Maryland is not among the states to which EPA has indicated a FIP would apply. 

MDE thanks the commenter for its comment. 

 

2. COMMENT: The commenter disagrees with EPA’s inclusion of CO2 in its definition of 

“regulated NSR pollutant,” and rejects the premise that EPA can and should take regulatory 

action that subjects GHG to the PSD and Title V programs as “unsound.” The commenter also 

states that the Tailoring Rule is the subject of litigation, and should not be used as the basis of a 

regulation in Maryland. 

RESPONSE: The first comment is directed to EPA and its actions relating to its rulemaking, 

rather than MDE’s proposed rule, and therefore MDE has no response to these comments. 

With regard to the second comment, although EPA’s Tailoring Rule currently is subject to 

litigation, it nevertheless remains in effect, and it requires Maryland to adopt the provisions of 

the rule by a certain timeframe. If amendments to the regulations are necessary as a result of the 

litigation, MDE will make them as expeditiously as possible. 

 

3. COMMENT: The commenter states that EPA's Tailoring rule considers waste-to-energy 

facilities to utilize "biogenic activities or biomass combustion" and that EPA's announcement of 

a proposed revision to the Tailoring rule will affect its facilities. In light of this announcement, 

the commenter "requests that the Department delay finalizing the Proposed Regulations until 

EPA revises the Tailoring Rule as announced by Administrator Jackson, or in the alternative, 

include the three year extension announced by EPA." 

RESPONSE: MDE is aware that in the Preamble to its final Tailoring Rule, EPA 

acknowledged that several commenters requested that EPA exempt emissions from biogenic 

activities or biomass combustion activities, including, among other things, waste-to-energy 

projects. 

Under the provisions of EPA’s Tailoring Rule, MDE was required to implement that rule 

by January 2, 2011 through its own regulations, or otherwise be subject to a Federal 

Implementation Plan (“FIP”), imposed by EPA, which would implement the rule in Maryland. 

MDE adopted an Emergency Regulation, effective January 2, 2011, implementing the Tailoring 

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Rule in Maryland, which is in effect temporarily. MDE issued its Proposed Rule on January 14, 

2011, and intends to finally adopt the Proposed Rule. 

If EPA finalizes its proposal to defer for 3 years the application of the pre-construction 

and Title V permitting requirements to CO2 emissions from biomass-fired and other biogenic 

sources--which EPA has committed to do in July 2011--MDE will consider what actions are 

appropriate at that time. In the meantime, MDE intends to refer to EPA’s recently-issued 

“Guidance For Determining Best Available Control Technology [BACT] For Reducing Carbon 

Dioxide Emissions From Bioenergy Production” to determine, on a case by case basis, the 

BACT for CO2 emissions of “bioenergy facilities” (as defined in the guidance) prior to the 

construction. 

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