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March 3, 2010 

ENVIRONMENTAL 

INTEGRITY PROJECT 

Via Email and Certified Mail 

Deborah Rabin 

Regulations Coordinator 

Air and Radiation Management Administration 

Maryland Department of the Environment 

1800 Washington Blvd 

Baltimore, MD 21230-1720 

drabin@mde.state.md.us 

1920 L Street NW, Suite BOO 

Washington, DC 20036 

p: 202-2Q6.8800 f: 202-296-8822 

www.environmentalintegrity.org 

RE: Comments on Proposed Revisions to COMAR 26.11.01 and 16.11.09 Related to Opacity 

Standards 

Dear Ms. Rabin: 

Thank you for the opportunity to submit comments on the proposed revisions to the 

Maryland Department of Environment (MOE) opacity regulations. We respectfully submit these 

comments on behalf of the Environmental Integrity Project, Sierra Club, Chesapeake Climate 

Action Network, and PennFuture. 

Maryland is plagued by poor air quality. The American Lung Cancer Association gave 

13 out of 13 Maryland counties with monitoring data an "F" grade for ozone in its 2009 "State of 

the Air" report, and six out of the eight counties with monitoring data for particulate matter 

pollution were graded "C" or below. American Lung Cancer Association, State of the Air 

(2009), available at http://www.stateoftheair.org/. Fortunately, Maryland has taken a number of 

important steps to improve air quality in recent years, and strict opacity standards will go a long 

way in protecting the health of Marylanders and the environment. 

Opacity measures the ability of light to penetrate exhaust gases from power plants and 

other boiler stacks. Rising opacity levels generally indicate higher levels of particulate matter 

and other pollution. Extensive studies have shown that particle pollution contributes to 

premature mortality and other heart and lung diseases, as well as asthma attacks and other 

respiratory ailments. Maryland's opacity standards help to minimize dangerous particulate 

emissions and move our state closer to attainment of the federal Clean Air Act standards 

designed to limit exposure to fine particles. 

These standards are meaningless without strong enforcement, and we appreciate MOE's 

efforts to improve enforcement of our state's opacity regulations. We are pleased that MOE has 

proposed to discontinue the use ofTechnical Memorandum 90-01 (TM 90-01) "Continuous 

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100% PCW ·~" eltl;;t 
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Emission Monitoring (CEM) Policies and Procedures" for the fuel burning equipment except for 

Part II "Quality Assurance Requirements for Continuous Opacity Monitoring Systems.'' This 

memorandum contains an enforcement policy that effectively weakens emission standards in the 

Maryland State Implementation Plan (SIP). The policy in TM 90-01 significantly limits MOE's 

ability to enforce opacity and other emission standards by allowing sources to operate without a 

CEM up to 20% of operating time per quarter without penalty. TM 90-0 I at 7. For example, 

where a facility uses CEM data to demonstrate compliance with a daily emission limit, TM 90-

01 allows a facility to operate approximately eighteen days each quarter without producing CEM 

data to demonstrate compliance. This facility could theoretically violate the Clean Air Act up to 

72 instances each year without facing penalty or enforcement. 

In addition, TM 90-01 allows major sources that use CEMs to demonstrate compliance to 

violate an emission standard "two times in one quarter or one time for two out of four quarters" 

before a facility is assessed a penalty or subject to other enforcement action. Id. at 6. This 

standard could allow a facility to violate emission limits over an extended period of time. For 

example, the SIP states that compliance with a NOx emission limit "shall be detennined as 30-

day rolling averages" for all major stationary sources that use a CEM to establish compliance. 

Md. Code Regs. 26.11.09.08(B)(2)(d). When the enforcement policy in TM 90-01 is applied in a 

situation where a facility demonstrates compliance with a monthly average, the facility could 

exceed the emission limit two months in a quarter without being penalized, or even issued a 

notice of violation. TM 90-01 at 6. Discontinuing the use ofTM 90-01 will eliminate loopholes 

that allow major sources of air pollution to escape compliance with Clean Air Act emission 

limits. 

While the revised opacity standards are a step in the right direction, we are concerned 

about several provisions that undermine the new rule and compromise the state's authority to 

implement the Title V operating permit program. Our specific concerns are as follows: 

1) MDE Must Eliminate the "One Day" Cap on Penalties for Violations of the Opacity 

Standards. 

The proposed "one-day'' cap on penalties regardless of the number of violations of the 

opacity standard undermines the opacity standards and compromises MOE's authority to 

administer the state's Title V operating permit program. The proposed rule limits all violations 

of the opacity standard in a 24 hour period to a single violation. Section 26.11.09.05(B)(l) of the 

proposed opacity standards states that "[f]or each unit required to operate a COM pursuant to 

COMAR 26.11.01.10A(l)(a) and (b), each day during a calendar quarter when the opacity of 

emissions from that unit during the calendar quarter or calendar day, as applicable, exceeds the 

emission limitations in §A(4)(a), (b), (c) and (d) of this regulation shall constitute a separate day 

of violation." The opacity standards must be met at all times, and a COM reports opacity in six 

minute increments. Under the proposed rule, facilities can violate the opacity standard on 240 

separate occasions, but will be held liable for just one violation. 

We analyzed COM data for Chalk Point Unit 4 submitted by Mirant Chalk Point, LLC 

and Mirant Mid-Atlantic, LLC (Mirant) to MOE in the second and third quarter of2005 to 

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compare the number of violations Mirant would be subject to under the current rules to the 

number of violations Mirant would be liable for under the proposed rules: 

Current Rule Proposed (4)(c)(i) Proposed ( 4)( c)(ii) 

2na Quarter 2005 343 15 1 

310 Quarter 2005 696 57 8 

Even though the actua1 emissions remain the same, the cap on violations severely reduces the 

amount of penalties Mirant is subject to for violation of the opacity standards. 

Furthermore, the proposed cap on violations of the opacity standard threatens Maryland's 

authority to administer the state's Title V operating permit program. Maryland must have 

sufficient enforcement authority to maintain EPA approval of its Title V program. See 40 C.F.R. 

§ 70.11. The federal rules state that MDE "shall have the following enforcement authority" to 

respond to violations: 

(3) To assess or sue to recover in court civil penalties and to seek 

criminal remedies, including fines, according to the following: 

(i) Civil penalties sha11 be recoverable for the violation of any 

applicable requirement; any permit condition; any fee or filing 

requirement; any duty to allow or carry out inspection, entry or 

monitoring activities or, any regulation or orders issued by the 

permitting authority. These penalties shall be recoverable in a 

maximum amount of not less than $10,000 per day per violation. 

State law shall not include mental state as an element of proof for 

civil violations. 

(ii) Criminal fines shall be recoverable against any person who 

knowingly violates any applicable requirement; any permit 

condition; or any fee or filing requirement. These fines shall be 

recoverable in a maximum amount of not less than $1 0,000 per 

day per violation. 

(iii) Criminal fines shall be recoverable against any person who 

knowingly makes any false material statement, representation or 

certification in any form, in any notice or report required by a 

permit, or who knowingly renders inaccurate any required 

monitoring device or method. These fines shall be recoverable in a 

maximum amount of not less than $1 0,000 per day per violation. 

40 C.F.R. § 70.11(a)(3) (emphasis added). MDE must have the authority to assess penalties for 

each violation of the opacity standard if it wishes to maintain EPA approval of its Title V 

program. MDE must eliminate the cap on violations, and make it clear that each violation of the 

opacity standard-which must be met at all times and is generally measured in 6 minute 

increments-constitutes a separate violation subject to penalties. 

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2) MDE Should Eliminate the Special Exemptions from Compliance for Cycling Units 

and Keep the Current Exceptions in COMAR 26.11.09.05(A)(3) Intact. 

MDE should keep the current exceptions to compliance with the opacity standards in 

COMAR 26.11.09.05(A)(3) in place and remove the special exemptions in the proposed rule 

because the special exemptions for cycling units in the proposed rules actually weaken current 

opacity standards. The current rule authorizes one exceedance of the opacity standard without 

penalty for one six minute period per hour. CO MAR 26.11.09.05(A)(3 )(b). The proposed 

section 26.11.09.05A(4}(c) allows cycling units (i.e. units with a capacity factor equal to or Jess 

than 25 percent) that operate more than 300 hours per quarter to exceed the opacity standard for 

20 hours each quarter. The proposed section 26.11.09.05(4)(d) allows cycling units that operate 

less than 300 hours per quarter to exceed the opacity standard for 12 hours each quarter. 

At first glance, it appears that the proposed special exemptions for the cycling units either 

maintain the status quo or authorize fewer exceedances of the opacity standard. For example, 

Chalk Point Units 3 and 4 operated between 122 hours and 238 hours per quarter in 2008. Under 

the proposed rules, these units could have exceeded the new standard between 5% and 10% of 

operating time each quarter without a penalty, and the current rule-one six minute period per 

hour-would authorize exceedances for I 0% of the operating time. 

However, opacity exceedances at power plants tend to occur in bunches around 

malfunctions, startup, and shutdown events as opposed to isolated six minute increments. 

MDE's sole focus on the percentage of operating time a plant is excused from compliance 

oversimplifies the problem and does not address the nature of opacity exceedances. Consider a 

scenario where a dozen six minute exceedances are spread over a two hour period. Under the 

new rule, all twelve exceedances fall within the I 2 hour exemption from compliance. The 

current rule only excuses two of these exceedances. Thus, the new exceptions for cycling units 

are actually a step backward from the current opacity standards and MDE should eliminate them 

from the final rule. 

3) The Proposed Rules Do Not Contain Sufficient Monitoring for Condensible 

Particulate Matter. 

We are pleased to see that the proposed opacity standards encourage the use of particulate 

matter CEMs, and we strongly support the use of this technology. The proposed rule, however, 

allows facilities to discontinue a COM when units are equipped with flue gas desulfurization 

units and particulate matter CEMs are installed. Section 26.ll.09.05(C) states that "the owner or 

operator of fuel burning equipment required to install and operate a COM may discontinue the 

operation of the COM on fuel burning equipment that is served by a flue gas desulfurization 

device. 

According to the U.S. Environmental Protection Agency, particulate matter CEMs do not 

measure condensible particulate matter pollution, which generally contains a much higher 

proportion of the finer particles that are considered most deadly. Opacity can serve as a 

surrogate for condensible particulate matter. MDE should require continuous monitoring of 

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condensible particulate matter and should not phase out the requirement to operate a COM once 

a particulate matter CEMs is installed. 

Thank you for considering our comments. 

Respectfully Submitted, 

~(J~·v 

Jennifer Peterson 

Attorney 

Environmental Integrity Project 

1920 L Street NW, Suite 800 

Washington, DC 20036 

jpeterson@environmentalintegrity.org 

(202) 263-4449 phone 

Sanjay Narayan 

Senior Staff Attorney 

Sierra Club Environmental Law Program 

85 Second Street, Second Floor 

San Francisco, CA 94105 

Diana Dascalu-Joffe 

Staff Attorney 

Chesapeake Climate Action Network 

PO Box 11138 

Takoma Park, MD 20912 

Charles McPhedran 

Law StaffChair 

PennFuture 

1518 Walnut Street, Suite 1100 

Philadelphia, P A 19101 

CC Via Certified Mail: 

George Abum, Director 

Air & Radiation Management Administration 

Maryland Department of the Environment 

1800 Washington Blvd 

Baltimore, MD 21230 

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David L. Arnold, Acting Director 

Air Protection Division 

U.S. Environmental Protection Agency Region III 

Mail Code 3APOO 

1650 Arch Street 

Philadelphia, PA 19103-2029 

Dianne McNalley, Acting Associate Director 

Office of Pennits & Air Toxics 

U.S. Environmental Protection Agency Region III 

Mail Code 3AP10 

1650 Arch Street 

Philadelphia, PA 19103-2029 

Amy Caprio 

Office of Permits & Air Toxics 

U.S. Environmental Protection Agency Region III 

Mail Code 3AP10 

1650 Arch Street 

Philadelphia, P A 19103-2029 

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