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March 3, 2010 ENVIRONMENTAL INTEGRITY PROJECT



### Via Email and CertifiedMail Deborah Rabin Regulations Coordinator Air and Radiation Management Administration Maryland Department ofthe 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.envi ronmental integrity.org



### RE : Comments on Proposed Revisions to COMAR 26.11

.01 and 16.11.09Relatedto Opacity Standards

Dear Ms. Rabin: Thankyou for the opportunity to submit comments on the proposed revisions to the Maryland Department ofEnvironment (MOE) opacityregulations. Werespectfully submit these comments on behalfofthe Environmental Integrity Project, Sierra Club, Chesapeake Climate Action Network, and PennFuture. Maryland is plaguedbypoor airquality. 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 ofthe eight counties with monitoring data for particulate matter pollution were graded "C" orbelow. American Lung Cancer Association, State ofthe 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 inprotecting the health ofMarylanders and the environment. Opacity measures the ability oflightto penetrate exhaust gases from power plants and otherboiler stacks. Rising opacity levels generally indicate higher levels ofparticulatematter and otherpollution. 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 ofthe 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 ofour 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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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). Thepolicyin 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% ofoperating time perquarter without penalty. TM 90-0I at 7. Forexample, 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 quarterwithout 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 thatuse CEMs to demonstrate compliance to violate an emission standard "two times in one quarter or one time for two out offour quarters" before a facility is assessed a penaltyor subject to other enforcement action. Id

. at 6. This standard could allow a facility to violate emission limits over an extended period oftime. For example, the SIP states that compliance with a NOx emission limit "shall bedetennined 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 beingpenalized, oreven issued a notice ofviolation. TM 90-01 at 6. Discontinuing the use ofTM 90-01 will eliminate loopholes that allow major sources ofair 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 MustEliminate the "One Day" Cap on Penalties for Violations ofthe Opacity Standards. The proposed "one-day'' cap on penalties regardless ofthe number ofviolations ofthe 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 ofthe opacity standard in a 24 hourperiod to a single violation. Section 26.11.09.05(B)(l) ofthe 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 dayduring 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) ofthis regulation shall constitute a separate day ofviolation." 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 forjust 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 ofviolations Mirant would be subject to under the current rules to the number ofviolations 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 ofpenalties Mirant is subject to for violation ofthe opacity standards. Furthermore, the proposed cap on violations ofthe 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 ofany applicable requirement; 

### anypermit condition; any fee or filing requirement; any duty to allow or carry out inspection, entry or monitoring activities or, any regulation or orders issued bythe permitting authority. These penalties shall be recoverable in a maximum amount ofnot less than $10,000perdayper violation

. 

### State law shall not include mental state 

### as an element ofprooffor civil violations. (ii) 

### Criminal fines shall be recoverable against any person who knowingly violates any applicable requirement; 

### any permit condition; or any fee orfiling requirement. These fines shall be recoverable in a maximum amount ofnot less than $1 0,000per dayper 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 orreport required by a permit, orwho knowingly renders inaccurate any required monitoring device ormethod. These fines shall berecoverable in a maximum amount of not less than $10,000perdayperviolation. 

### 40 C

.F.R. § 

### 70

. 11(a)(3) (emphasis added)

. MDE must have the authority to assess penalties for each violation ofthe opacity standard ifit wishes to maintain EPA approval ofits Title V program. MDE must eliminate the cap on violations, and make it clear that each violation ofthe opacity standard-which must bemet 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 CurrentExceptions 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 cyclingunits in the proposed rules actually weaken current opacity standards. The current rule authorizes one exceedance ofthe opacity standard without penalty for one six minute period perhour. COMAR 26.11.09.05(A)(3

### )(b). The proposed section 26.11.09.05A(4}(c) allows cyclingunits (i

.e. units with a capacity factor equal to orJess 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 ofthe opacity standard. For example, Chalk Point Units 3 and 4 operated between 122 hours and 238 hours perquarterin2008

. 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 minuteperiod per hour-would authorize exceedances for I 0% ofthe operating time

. However, opacity exceedances at power plants tend to occur in bunches around malfuncti ons, startup, and shutdown events as opposed to isolated six minute increments. MDE's sole focus on the percentage ofoperating time a plant is excused from compliance oversimplifies the problem and does not address the nature ofopacity 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 ofthese exceedances. Thus, thenew 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 useofparticulate matter CEMs, and we strongly support the use ofthis 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 offuel burning equipment required to install and operate a COM may discontinue the operation ofthe 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 matterpollution, which generally contains a much higher proportion ofthefiner 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. Thankyou for considering our comments
. Respectfully Submitted,

# ~(J~·v Jennif er Peterson Attorney Environmental Integrity Project 1920 L StreetNW, Suite 800 Washington, DC 20036 jpeterson@environmentalintegrity

.org (202) 263-4449 phone Sanjay Narayan Senior StaffAttorney Sierra Club Environmental Law Program 85 Second Street, Second Floor San Francisco, CA 94105 Diana Dascalu-Joffe StaffAttorney 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 ofthe Environment 1800 Washington Blvd Baltimore, MD 21230



### 5David 

### 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 ofPennits & Air Toxics U.S. Environmental Protection Agency Region 

### III Mail Code 3AP10 1650 Arch Street Philadelphia, PA 19103-2029 Amy Caprio OfficeofPermits & Air Toxics U.S

. Environmental Protection Agency Region III Mail Code 3AP10 1650 Arch Street Philadelphia, PA 19103-2029

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