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) Re gulation .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, 1 st 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 b een 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

1Maryland's proposed regulatory revisions to in clude 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 partic ular 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

2Rule 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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