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• Clean Air Act Full Approval of Operating Permit Program; Maryland

Clean Air Act Full Approval of Operating Permit Program; Maryland

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  [Federal Register: January 15, 2003 (Volume 68, Number 10)]
[Rules and Regulations]
[Page 1974-1985]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ja03-11]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[MD-T5-2002-01a; FRL-7440-2]
 
Clean Air Act Full Approval of Operating Permit Program; Maryland

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; final full approval.

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SUMMARY: The EPA is taking final action to grant full approval of the 
State of Maryland's operating permit program. Maryland's operating 
permit program was submitted in response to the Clean Air Act 
Amendments of 1990 that required each state to develop, and submit to 
EPA, a program for issuing operating permits to all major stationary 
sources and to certain other sources within the state's jurisdiction. 
The EPA granted final interim approval of Maryland's operating permit 
program on July 3, 1996. The State of Maryland amended its operating 
permit program to address the deficiencies identified in the final 
interim approval action, and this final rulemaking action approves 
those amendments. The EPA proposed full approval of Maryland's 
operating permit program in the Federal Register on September 10, 2002. 
This final rulemaking summarizes the comments EPA received on the 
September 10, 2002 proposal, provides EPA's responses, and promulgates 
final full approval of the State of Maryland's operating permit 
program.

DATES: This final rule is effective on February 14, 2003.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103 and Maryland 
Department of the Environment, 1800 Washington Boulevard, Suite 705, 
Baltimore, Maryland, 21230.

FOR FURTHER INFORMATION CONTACT: David Campbell, Permits and Technical 
Assessment Branch at (215) 814-2196 or by e-mail at 
campbell.dave@.epa.gov.

SUPPLEMENTARY INFORMATION: On July 15, 2002, the State of Maryland 
submitted amendments to its State operating permit program. These 
amendments are the subject of this document and this section provides 
additional information on the amendments by addressing the following 
questions:

    What Is the State Operating Permit Program?
    Why Is EPA Taking This Action?
    What Action Is Being Taken by EPA?
    What Were the Concerns Raised by the Commenters?
    How Does This Action Affect the Part 71 Program in Maryland?

What Is the State Operating Permit Program?

    The Clean Air Act Amendments of 1990 required all states to develop 
operating permit programs that meet certain federal criteria. When 
implementing the operating permit programs, the states require certain 
sources of air pollution to obtain permits that contain all of their 
applicable requirements under the Clean Air Act. The focus of the 
operating permit program is to improve enforcement by issuing each 
source a permit that consolidates all of its

[[Page 1975]]

applicable Clean Air Act requirements into a federally enforceable 
document. By consolidating all of the applicable requirements for a 
given air pollution source into an operating permit, the source, the 
public, and the state environmental agency can more easily understand 
what Clean Air Act requirements apply and how compliance with those 
requirements is determined.
    Sources required to obtain an operating permit under this program 
include ``major'' sources of air pollution and certain other sources 
specified in the Clean Air Act or in the EPA's implementing 
regulations. For example, all sources regulated under the acid rain 
program, regardless of size, must obtain operating permits. Examples of 
``major'' sources include those that have the potential to emit 100 
tons per year or more of volatile organic compounds, carbon monoxide, 
lead, sulfur dioxide, nitrogen oxides, or particulate matter (PM10); 
those that emit 10 tons per year of any single hazardous air pollutant 
(HAP) specifically listed under the Clean Air Act; or those that emit 
or have the potential to emit 25 tons per year or more of a combination 
of HAPs. In areas that are not meeting the national ambient air quality 
standards (NAAQS) for ozone, carbon monoxide, or particulate matter, 
major sources are defined by the gravity of the nonattainment 
classification.

Why Is EPA Taking This Action?

    Where a title V operating permit program substantially, but not 
fully, met the criteria outlined in the implementing regulations 
codified at 40 CFR part 70, EPA granted interim approval contingent 
upon the state revising its program to correct the deficiencies. 
Because the Maryland operating permit program substantially, but not 
fully, met the requirements of part 70, EPA granted final interim 
approval of Maryland's program in a rule promulgated on July 3, 1996 
(61 FR 34733). The interim approval notice described the conditions 
that had to be met in order for the Maryland operating permit program 
to receive full approval. Initially, Maryland's interim approval 
period, during which it was required to address its interim approval 
deficiencies, was scheduled to lapse two years after the effective date 
of the final interim approval action. However, EPA extended the interim 
approval period until December 1, 2001 for 86 operating permit 
programs, including Maryland's, in a rule promulgated on May 22, 2000 
(65 FR 32035).
    Maryland was unable to fully address each of the conditions it had 
to meet in order to be considered for full approval by December 1, 
2001. Therefore, Maryland's interim approval has lapsed and the State 
has suspended its implementation of an approved program pursuant to 40 
CFR part 70. Lapse of the part 70 program did not cause the State's 
operating permit program regulations to become disapproved or 
rescinded, although Maryland has not implemented or enforced these 
provisions during the period of the lapse. On December 5, 2001 (66 FR 
63236), EPA announced that the 40 CFR part 71 federal operating permit 
program became effective in Maryland on December 1, 2001. In that same 
announcement, EPA granted full delegation to Maryland to implement and 
enforce the 40 CFR part 71 program. The 40 CFR part 71 program will be 
effective in Maryland until the State is granted final full approval of 
its program.
    On July 15, 2002, Maryland submitted to EPA amendments to its title 
V operating permit program. These amendments are intended to correct 
deficiencies identified by EPA when it granted final interim approval 
of Maryland's program in 1996. In addition, Maryland also made 
revisions to its operating permit program since its program received 
final interim approval in 1996. The revisions were not intended to 
address any of the identified interim approval deficiencies. Rather, 
the intent of these discretionary program changes was to improve 
implementation of the existing program. The approval of the 
discretionary program revisions is not necessary in order for Maryland 
to adequately address its interim approval deficiencies, nor must they 
be approved prior to Maryland receiving full approval.
    The EPA proposed final full approval of Maryland's operating permit 
program on September 10, 2002 (67 FR 57496). On October 10, 2002, EPA 
received comments from Earthjustice pursuant to the September 10, 2002 
notice of proposed rulemaking granting final full approval of 
Maryland's operating permit program.
    It should be noted that in response to a separate, earlier action, 
Earthjustice provided EPA with comments regarding Maryland's permit 
program. As discussed above, in May 2002 EPA extended the interim 
approval period for Maryland, among others, until December 1, 2001. The 
extension was subsequently challenged by the Sierra Club and the New 
York Public Interest Research Group (NYPIRG). In settling the 
litigation, EPA agreed to publish a notice in the Federal Register that 
would alert the public that they may identify and bring to EPA's 
attention alleged programmatic and/or implementation deficiencies in 
title V programs and that EPA would respond to their allegations within 
specified time periods if the comments were made within 90 days of 
publication of the Federal Register notice. That notice was published 
on December 11, 2000 (65 FR 77376).
    In response to the December 11, 2000 notice, EPA received a March 
12, 2001 letter from Earthjustice identifying what it believed to be 
deficiencies with respect to the Maryland title V program. The EPA 
notified Earthjustice in a letter dated December 14, 2001 that the 
Agency would not respond to Earthjustice's March 12, 2001 comments at 
that time but that EPA would consider the comments and provide a 
written response to each comment at a later date.
    In its September 10, 2002 Federal Register notice proposing to 
fully approve Maryland's operating permit program, EPA stated that we 
did not intend to take formal action on Earthjustice's March 12, 2001 
comment letter in any final rulemaking action pertaining to the final 
full approval. In the proposed rulemaking notice, EPA announced that it 
would publish a notice of deficiency (NOD) pursuant to 40 CFR 70.4(i) 
and 70.10(b) when we determine that a deficiency exists, or we will 
notify the commenter, in writing, to explain our reasons for not making 
a finding of deficiency.
    On September 23, 2002, EPA formally responded to Earthjustice's 
March 12, 2001 comments. In our response, we explain that we did not 
agree with the Earthjustice's assertions and detail our reasons for not 
issuing a notice of deficiency with regard to Maryland's program. In 
the near future, a notice of availability will be published in the 
Federal Register notifying the public that we have responded, in 
writing, to these comments and how the public may obtain a copy of our 
responses. The EPA's September 23, 2002 letter is currently available 
at the following web address: (http://www.epa.gov/air/oaqps/permits/
response/maryland.pdf).
    As mentioned above, on October 10, 2002, EPA received comments from 
Earthjustice pursuant to the September 10, 2002 notice of proposed 
rulemaking granting final full approval of Maryland's operating permit 
program. A number of the issue raised by Earthjustice are the same as 
those raised in its March 12, 2001 comment letter. The October 10, 2002 
letter also raised a number of issues that previously had not been 
raised.

[[Page 1976]]

What Action Is Being Taken by EPA?

    EPA is granting final full approval to Maryland's revised part 70 
operating permits program. For the reasons discussed below, EPA's final 
full approval is based on Maryland's satisfactory correction of the 
nine program deficiencies identified when EPA granted final interim 
approval of Maryland's operating permit program on June 3, 1996, and it 
also includes other revisions that Maryland has made to improve its 
program since receiving interim approval. The operating permit program 
amendments submitted by Maryland on July 15, 2002, considered together 
with that portion of Maryland's operating permit program that was 
earlier approved on an interim basis fully satisfy the minimum 
requirements of 40 CFR part 70 and the Clean Air Act. Furthermore, EPA 
has determined that Earthjustice's October 10, 2002 comments relating 
to Maryland's interim approval deficiencies do not identify 
deficiencies in Maryland's part 70 program.
    In addition, EPA is responding to Earthjustice's October 10, 2002 
comments alleging other deficiencies in Maryland's part 70 program, 
including comments related to those first made by Earthjustice on March 
12, 2001 and addressed in EPA's September 23, 2002 response and 
comments first raised on October 10, 2002. While EPA believes it is not 
obligated to respond to comments that do not pertain to interim 
approval deficiencies in this rulemaking, EPA has concluded that none 
of the concerns raised in those comments constitute deficiencies in the 
Maryland operating permit program. If a court should determine that EPA 
is obligated to respond to those additional comments in order to grant 
final full approval to Maryland's part 70 program, then the responses 
set forth in this notice should be considered EPA's final action in 
response to those comments.

What Were the Concerns Raised by the Commenters?

    The EPA received one comment letter during the public comment 
period. In its October 10, 2002 letter, Earthjustice commented on the 
proper scope of EPA's full approval of Maryland's part 70 program. 
Earthjustice also commented on several specific aspects of Maryland's 
program, which can be grouped into three categories. First, 
Earthjustice commented on a number of the corrections Maryland made to 
its program in order to address the deficiencies that EPA previously 
determined must be corrected in order for the State to receive full 
approval of its program. These program deficiencies, called interim 
approval deficiencies, were identified when EPA granted final interim 
approval of Maryland's program in 1996. As discussed in the notice of 
proposed rulemaking, Maryland was required to address each of the nine 
deficiencies identified by EPA in order to be eligible for full 
approval of its program. Second, Earthjustice commented on a number of 
alleged deficiencies that it first raised in its March 12, 2001 letter 
and that EPA addressed in the Agency's September 23, 2002 response. 
Finally, Earthjustice provided comments alleging, for the first, time, 
that certain other issues constitute deficiencies in Maryland's 
program.
    Earthjustice asserts that in order to fully approve Maryland's part 
70 program, EPA must determine that the entire program complies with 
the Clean Air Act and part 70, and that EPA's proposal to grant full 
approval based solely on Maryland's correction of its interim approval 
deficiencies is inconsistent with section 502(d)(1) of the Clean Air 
Act, which authorizes EPA to approve a state operating permit program 
``to the extent that the program meets the requirements of [the Clean 
Air Act and EPA's implementing regulations].'' Accordingly, 
Earthjustice asserts that EPA cannot grant full approval of Maryland's 
part 70 program without first addressing all alleged deficiencies 
identified by Earthjustice in its October 10, 2002 comment letter.
    The EPA is aware that Earthjustice has alleged deficiencies other 
than those interim approval deficiencies listed in Maryland's June 3, 
1996 final interim approval notice, and EPA agrees that those 
allegations must be addressed through appropriate actions by EPA and/or 
the State of Maryland. Indeed, EPA is responding to those allegations 
in this notice. For the reasons discussed below, however, we disagree 
that the deficiencies alleged in the October 10, 2001 comment letter 
that do not pertain to interim approval deficiencies prohibit EPA from 
granting full approval of Maryland's operating permit program at this 
time.
    Title V of the Clean Air Act, 42 U.S.C. 7661-7661f, provides a 
framework for the development, submission and approval of state 
operating permit programs. Following the development and submission of 
a state program, the Act provides two different approval options that 
EPA may utilize in acting on state submissions. See 42 U.S.C. 7661a(d) 
and (g). Pursuant to section 502(d), EPA ``may approve a program to the 
extent that the program meets the requirements of [the Clean Air Act 
and implementing regulations].'' The EPA may act on such program 
submissions by approving or disapproving, in whole or in part, the 
state program. If a program is disapproved, section 502(d) requires the 
Administrator to notify the Governor of the State of ``any revisions or 
modifications necessary to obtain approval.''
    An alternative option for acting on state programs is provided by 
the interim approval provision of section 502(g), which states: ``If a 
program . . . substantially meets the requirements of [title V], but is 
not fully approvable, the Administrator may by rule grant the program 
interim approval.'' This provision provides EPA with the authority to 
act on state programs that substantially, but do not fully, meet the 
requirements of title V and part 70. Only those program submissions 
that meet the requirements of eleven key program areas are eligible to 
receive interim approval. See 40 CFR 70.4(d)(3)(i)-(xi). Finally, 
section 502(g) directs EPA to ``specify the changes that must be made 
before the program can receive full approval.'' 42 U.S.C. 7661a(g); 40 
CFR 70.4(e)(3). This explicit directive encompasses another, implicit 
one: Once a state with interim approval corrects the specified 
deficiencies then it will be eligible for full program approval. The 
EPA believes this is so even if deficiencies have been identified 
sometime after final interim approval, either because the deficiencies 
arose after EPA granted interim approval or, if the deficiencies 
existed at that time, EPA failed to identify them as such in proposing 
to grant interim approval. Thus, the Clean Air Act clearly addresses 
initial title V program submissions by outlining the alternate 
mechanisms of sections 502(d) and 502(g). However, the statute does not 
specifically address Maryland's situation, where the State's interim 
approval has lapsed and the State has submitted a revised part 70 
program, rather than an initial program.
    The EPA believes that the interim approval provision, section 
502(g), is not applicable to Maryland's current situation. Section 
502(g) expressly provides that interim approval ``shall expire'' on a 
date certain and ``may not be renewed.'' The EPA agreed in resolving 
the Sierra Club's interim approval litigation not to extend interim 
approvals beyond December 1, 2001, the date when Maryland's interim 
approval expired.
    The EPA believes, however, that under section 502(d) and the notice 
of deficiency mechanism authorized by section 502(i), it is appropriate 
to grant Maryland's revised part 70 program full

[[Page 1977]]

approval based solely on Maryland's correction of its interim approval 
deficiencies and to separately address any deficiencies alleged or 
identified post-interim approval. Section 502(d) requires that the 
Administrator, upon disapproving a state's initial program submission, 
formally notify the state of changes that must be made prior to full 
approval. Similarly, while not directly applicable here, section 502(g) 
requires EPA to notify a state of changes needed as conditions of full 
approval. It would be inconsistent with the structure of these 
provisions for EPA to deny full approval to Maryland's revised part 70 
program because of newly alleged deficiencies, where Maryland's interim 
approval has lapsed but EPA has not yet had an opportunity to evaluate 
the allegations or provide notice of any identified deficiencies to the 
State.
    Furthermore, the notice of deficiency mechanism authorized by 
section 502(i) provides a means for EPA to require a state to correct 
any newly identified deficiencies while granting full approval to the 
state's program. Section 502(i)(4) of the Act and 40 CFR 70.4(i) and 
70.10 authorize EPA to issue a notice of deficiency (NOD) whenever EPA 
makes a determination that a permitting authority is not adequately 
administering or enforcing an approved part 70 program, or that the 
state's permit program is inadequate in any other way. Consistent with 
these provisions, any NOD issued by EPA will specify a reasonable time-
frame for the permitting authority to correct the identified 
deficiency. Requiring Maryland to correct deficiencies that have been 
alleged or identified as recently as October 2002 in order to receive 
full approval would run counter to the statutory and regulatory process 
that is already in place to deal with newly identified program 
deficiencies.
    As discussed above, the interim approval status of Maryland's title 
V operating permit program lapsed on December 1, 2001. Since that time, 
Maryland has been implementing the delegated federal operating permit 
program pursuant to 40 CFR part 71. Maryland has also addressed all of 
the interim approval deficiencies and has fulfilled the conditions 
identified by EPA in order for the State to be eligible for full 
approval. Denying the State's program full approval because of issues 
alleged as recently as October 2002 would cause disruption and further 
delay in the issuance of title V permits to major stationary sources in 
Maryland. As explained above, we do not believe that title V of the 
Clean Air Act requires such a result. Rather, EPA believes that in the 
case of Maryland, where interim approval lapsed, the appropriate 
mechanism for dealing with additional deficiencies that are identified 
after the program received interim approval but prior to a revised 
program receiving full approval is twofold: full approval based solely 
on the State's correction of its interim approval deficiencies and, if 
necessary, issuance of a notice of deficiency to address any newly 
identified deficiencies. It should be noted that NODs may also be 
issued by EPA after a program has been granted full approval. Following 
the defined process for the identification of deficiencies and the 
issuance of NODs will provide the State an adequate amount of time 
after such findings to implement any necessary changes without unduly 
disrupting the entire State operating permit program. At the same time, 
addressing any newly identified problems separately from the full 
approval process will not cause these issues to go unaddressed. To the 
contrary, if EPA determines that any of the alleged deficiencies in 
Maryland's program are well-founded, it will issue a NOD and place 
Maryland on notice that it must promptly correct the non-interim 
approval deficiencies within a specified time period or face Clean Air 
Act sanctions and withdrawal of program approval.
    Therefore, EPA disagrees with Earthjustice that the Agency must 
consider all alleged deficiencies prior to granting full approval of 
Maryland's operating permit program. Through EPA's full approval 
rulemaking, interested parties have had an opportunity to identify any 
concerns they may have with the various aspects of Maryland's title V 
operating permit program. In light of the above discussion, the Agency 
has grouped Earthjustice's comments into three categories. The first 
category of comments are those related to deficiencies identified by 
EPA when we granted final interim approval of Maryland's program in 
1996. The second category are those comments that address issues 
regarding Maryland's program that Earthjustice raised on March 12, 2001 
and for which EPA provided formal responses in a letter to Earthjustice 
on September 23, 2002. The final category pertains to comments raised 
by Earthjustice regarding portions of Maryland's program that were 
approved by EPA when the Agency granted final interim approval in 1996 
and that were not the subject of the proposed full approval rulemaking 
action published on September 10, 2002. As noted above, Maryland also 
made regulatory amendments to its program in addition to changes it 
made to address the program deficiencies identified by EPA. 
Earthjustice did not provide comments on any of these regulatory 
amendments.
    Only EPA's responses to the comments related to interim approval 
corrections are integral to EPA's full approval of its operating permit 
program announced in this rulemaking. Should it be determined that 
EPA's consideration of the other two categories of comments in 
Earthjustice's October 10, 2002 letter as being outside the scope of 
the full approval action is inconsistent with the Clean Air Act, its 
implementing regulations, and the Administrative Procedures Act, 5 
U.S.C. 551 et seq., the Agency's responses to those comments provided 
below shall be considered EPA's final action in response to those 
comments.

A. Comments Related to Interim Approval Corrections

    The following discussion responds to comments provided by 
Earthjustice on October 10, 2002 that pertain directly to the 
corrections Maryland made in order to address issues identified by EPA 
when it granted the State final interim approval in 1996. As discussed 
above, EPA believes it must respond to these comments because they are 
germane to this action to grant final full approval of Maryland's 
program. The EPA finds that Maryland has corrected all of its interim 
approval deficiencies.
    Comment: The commenter believes Maryland's operating permit program 
regulations violate 40 CFR 70.5(c) and 40 CFR 70.5(c)(3)(i) by granting 
the State unfettered discretion to exempt units from permit application 
requirements even though they are not identified on a ``list'' that is 
approved by EPA as part of the State's program.
    Response: The EPA disagrees with the commenter's assertion that 
Maryland's program does not meet the minimum requirements of 40 CFR 
70.5(c) regarding permit application content. Maryland's regulations at 
Code of Maryland Regulations (COMAR) 26.11.03.04(A) exempt permittees 
from the obligation to provide in their permit applications detailed 
emissions and operational information for specific types or categories 
of emission units. Maryland's regulations enumerate 13 emission units 
or categories that are not required to be included in permit 
applications. These so-called ``insignificant activities'' represent 
emission units that are expected to have very low potential emissions 
and are not likely to be subject to any applicable requirements. The 
commenter has not raised a concern with the insignificant

[[Page 1978]]

activities listed in Maryland's regulations. However, the commenter 
expresses concern that Maryland may employ COMAR 26.11.03.04(A)(14) to 
expand the approved list of 13 enumerated insignificant activities 
without the appropriate level of EPA review and approval.
    Maryland revised the language of the COMAR 26.11.03.04(A)(14) in 
order to address a deficiency identified by EPA when the State's 
program was granted interim approval. Originally, Maryland's 
regulations exempted from permit applications emission units without 
applicable requirements of the Clean Air Act. The EPA was concerned 
that the exemption was too broad because permittees exercising the 
exemption did not have to identify the specific emission units or 
activities to the State, EPA and the public and that the exempted units 
may not be part of an EPA-approved insignificant activity list. In 
response to EPA's concerns, Maryland modified the language of COMAR 
26.11.03.04(A)(14) to require the State to agree with any 
recommendation that an emission unit or activity be considered an 
insignificant activity. Therefore, Maryland may amend the list of 13 
insignificant activities enumerated in its regulations by supplementing 
its regulatory insignificant activity list with a non-regulatory list 
of activities. The EPA expects that activities added to Maryland's list 
pursuant to COMAR 26.11.03.04(A)(14) will be consistent with the 
activities included in COMAR 26.11.03.04(A)(1)-(13) and with EPA's 
criteria for insignificant activities.
    The title V implementing regulations at 40 CFR 70.5(c) do not 
require insignificant activity lists to be codified as part of a 
state's operating permit program regulations. However, the federal 
regulations do require insignificant activity lists to be approved by 
EPA as part of a state's program. Although Maryland's regulations do 
not explicitly require that EPA approve of any insignificant activities 
added by the State using the authority of COMAR 26.11.03.04(A)(14), EPA 
interprets Maryland's regulations as expressing the State's intent and 
obligation to submit such added activities to EPA for approval as part 
of the Maryland operating permit program. This interpretation is 
consistent with the State's ongoing obligation to keep EPA apprised of 
any changes to its program as required by 40 CFR 70.4(i). Thus, 40 CFR 
70.5(c) requires any insignificant activity list employed by Maryland 
to be approved as part of its program by EPA and 40 CFR 70.4(i) 
requires the State to keep EPA informed of any changes it intends to 
make to its approved program. If Maryland were to fail to seek EPA 
approval of amendments to its insignificant activity list, EPA could 
determine, pursuant to 40 CFR 70.10(b), that the State was failing to 
administer and enforce its approved program. Were EPA to make such a 
determination, Maryland would be obligated to submit the necessary 
program revisions and could face program withdrawal and sanctions as 
articulated by 40 CFR 70.10. It should be noted that the requirement of 
the State to implement its approved program applies generically and at 
all times and not only to the insignificant activity provisions.
    The EPA confirmed Maryland's understanding of the State's ongoing 
obligation to inform EPA of all proposed program modifications and to 
seek EPA approval of such program changes. As documented in a December 
12, 2002 memorandum from David Campbell, Air Protection Division, EPA 
Region III to the docket file for this action (hereafter, the December 
12, 2002 memorandum), Maryland confirmed EPA's interpretation of COMAR 
26.11.03.04 and related that it understands its duty to seek approval 
of revisions to its operating permit program, including any changes to 
the insignificant activity list.
    Comment: The commenter believes Maryland's operating permit program 
regulations do not require general permits to be issued in accordance 
with the mandatory public participation procedures provided by 40 CFR 
70.7(h). The commenter also expresses concern that Maryland's program 
does not clearly provide for adequate review by EPA and affected states 
and does not affirm citizens' authority to petition EPA to object to 
general permits.
    Response: Maryland's regulations at COMAR 26.11.07(A)(3) require 
general permits to complete ``all of the public, affected State, and 
EPA notification, comment, and review procedures required by this 
regulation.'' The EPA did not correctly interpret the full scope of the 
public participation procedures of COMAR 26.11.07 when it reviewed the 
regulation as part of Maryland's original program submittal in 1995. At 
that time, EPA incorrectly believed that the provisions of COMAR 
26.11.07 applied only to permits or permit modifications for individual 
sources and not to general permits. As a result, EPA identified the 
lack of adequate public participation for general permits as a program 
deficiency when it granted Maryland interim approval. In its interim 
approval actions, EPA directed Maryland to revise its program to add 
requirements to its general permit provisions to clarify that general 
permits must undergo appropriate EPA and affected state review and that 
the State shall maintain records of public comments raised during the 
public participation process for general permits.
    It is important to note that the public participation procedures of 
COMAR 26.11.07 were approved by EPA as meeting the minimum requirements 
of 40 CFR 70.7(h). As discussed above, when EPA granted interim 
approval of Maryland's program in 1996 it interpreted the requirements 
of COMAR 26.11.07 as applying only to permits for individual sources. 
In that context, the Agency found the provisions acceptable and no 
comments were received pertaining to the public participation 
provisions at that time. The EPA now understands that the public 
participation provisions of COMAR 26.11.07 also apply to general 
permits and has confirmed its interpretation of these provisions with 
Maryland. (See December 12, 2002 memorandum.) The federal requirements 
for general permits at 40 CFR 70.6(d) requires that general permits 
must be subject to public participation procedures consistent with 40 
CFR 70.7(h) and must comply with all requirements applicable to other 
part 70 permits. The provisions of COMAR 26.11.07 and COMAR 26.11.03.21 
satisfy these requirements.
    The provisions of COMAR 26.11.03.21 that apply specifically to 
general permits should be interpreted to be additional requirements on 
these type of permits above and beyond those that apply to permits for 
individual sources. This interpretation is supported by the language of 
COMAR 26.11.03.21(A) that states that ``[a]ny general permit shall 
comply with all requirements applicable to other part 70 permits. * * 
*'' It should be noted that COMAR 26.11.03.21(A) indicates that general 
permits must also satisfy the public participation requirements of 
Maryland's Administrative Procedure Act, State Government Article, 
section 10-101 et seq.
    With regard to citizens' authority to petition EPA, COMAR 
26.11.03.07(G) and COMAR 26.11.03.10 affirm the authority of citizens 
to petition EPA to object to a permit. The provisions of these 
regulations apply to both permits for individual sources and general 
permits. Likewise, the provisions of COMAR 26.11.03.08 and 26.11.03.09 
regarding affected state and EPA review, respectively, apply to permits 
for individual sources and general permits. Each of these provisions 
have been previously determined to be consistent

[[Page 1979]]

with the relevant requirements of 40 CFR part 70.
    While EPA now understands that such changes were not necessary, 
Maryland made the changes to its regulations as recommended when EPA 
granted final interim approval in 1996. The changes made by Maryland 
simply underscore the requirement that general permits must be subject 
to the public participation procedures and EPA and affected state 
review afforded permits for individual permits.
    Comment: The commenter believes that the permit modification 
procedures that apply to Maryland's general permits violate 40 CFR part 
70. The applicable federal regulations do not allow an individual 
source operating under a general permit to unilaterally request a 
change to the general permit and proceed to make operational changes 
prior to modification of the terms of the general permit.
    Response: Maryland's regulations do not allow an individual source 
operating under a general permit to formally request a change to the 
general permit and to proceed to make operational changes prior to 
modification of the general permit. As discussed above, Maryland must 
follow all of the public participation procedures as required by the 
rulemaking provisions of the State's Administrative Procedures Act 
prior to making a change to the general permit. Subsequent to making 
the change to the general permit, the State would have to revise the 
general permit by following all of the public participation 
requirements required of such actions by its operating permit 
regulations, namely COMAR 26.11.03.07. Therefore, it is impractical for 
an individual source that is covered by an existing general permit to 
appropriately apply for a modification of the general permit that would 
effect that source as well as any other source covered by the general 
permit.
    Since Maryland must initiate any action to revise the general 
permit, the only available mechanism for such revisions are derived 
from COMAR 26.11.03.20 which governs the reopening of operating permits 
by Maryland. Maryland's regulations indicate that such permit revision 
procedures as administrative amendments and minor and significant 
permit modifications may only be initiated by permittees. As mentioned 
above, individual permittees may not initiate the rulemaking procedures 
that are necessary to revise general permits in Maryland. It should be 
noted that Maryland's Administrative Procedures Act allows the public 
to petition the State to request a specific rulemaking action. Thus, an 
individual source may petition the State to make a revision to an 
existing general permit, however, Maryland is not obligated in any way 
by its operating permit regulations to respond to such petitions.
    As part of its interim approval action, EPA identified concerns 
with the manner in which Maryland's regulations addressed general 
permit modifications. Maryland's regulations had provided the State 
with the authority to define the appropriate permit modification 
procedures on a case-specific basis or within the legal construction of 
a general permit. EPA felt that these provisions provided too much 
discretion to Maryland in terms of how future modifications to general 
permits would proceed. In order to address the interim approval 
deficiency, Maryland removed the authority to define general permit 
modification procedures on an informal basis or as part of the 
framework of a general permit. In its interim approval action, EPA 
further directed Maryland to clarify that the procedures for making 
revisions to general permits are consistent with 40 CFR 70.7(e) which 
governs permit modifications. Maryland addressed this issue by stating 
in its regulations at COMAR 26.11.03.21(L) that the permit revisions 
procedures that apply to permits for individual sources also apply to 
general permits. The EPA determined in the final interim approval 
action that the permit modification procedures that apply to permits 
for individual sources are consistent with 40 CFR 70.7(e) and the 
minimum requirements of part 70.
    The regulations at 40 CFR 70.6(d) governing general permits provide 
limited discussion regarding the expected or required permit 
modification procedures for general permits other than requiring 
general permits to ``comply with all requirements applicable to other 
part 70 permits.'' From this reference, it is inferred in the absence 
of more specific regulatory language regarding general permit 
modification procedures, that the permit modification procedures for 
permits for individual sources articulated at 40 CFR 70.7(e) would be 
applicable to general permits. Therefore, Maryland has amended its 
regulations regarding the modification procedures for general permits 
as directed by EPA and in a manner consistent with the minimum 
requirements of part 70.
    As discussed above, EPA did not have a complete understanding of 
Maryland's regulations with regard to the general permit provisions 
when it granted final interim approval in 1996. The requirements of 
COMAR 26.11.03.21(L) are, as a practical matter, not applicable to 
modifications of general permits since only the State of Maryland may 
revise general permits by initiating its rulemaking procedures and then 
using its authority to reopen the existing general permit.
    It should be noted that if an affected individual source were to 
attempt to seek a revision to an existing general permit, there would 
be a number of safeguards and negative ramifications that should 
minimize the potential for erroneous implementation of the permit 
revision process on the source's part. First, it is assumed that the 
source would submit some form of application or formal request seeking 
a modification to the general permit. As part of that request, 
Maryland's permit modification procedures requires applicants to 
certify that they are using the appropriate permit revision process 
when filing a revision request. Upon receipt of the modification 
request, Maryland would deny the application on grounds that the source 
was not authorized to request such a change to a general permit. 
Furthermore, if the applicant preceded to make the change it is 
requesting prior to the State responding to the request, the applicant 
would not be operating consistent with its approved permit and could 
face associated enforcement and penalty ramifications. The EPA 
confirmed this understanding of COMAR 26.11.03.21 and how Maryland 
would implement its general permit provisions. (See December 12, 2002 
memorandum.)

B. Comments Pertaining to Issues Raised in Earthjustice's March 12, 
2002 Letter

    The following discussion responds to comments provided by 
Earthjustice on October 10, 2002 regarding issues that Earthjustice 
initially raised as part of its March 12, 2002 letter to EPA. As 
discussed above, EPA provided its formal responses regarding these 
issues to Earthjustice on September 23, 2002 and has made those 
responses available to the public. The Agency does not believe it is 
required to respond to these comments as part of its action to grant 
final full approval to Maryland. Nonetheless, the following responses 
are provided to clarify our original responses and to respond to 
additional points raised by Earthjustice regarding these matters in its 
October 10, 2002 letter.
    Comment: The commenter believes that EPA must unequivocally 
determine that Ann. Code Md. 2-106 does not interfere with the public's 
ability to enforce permit conditions in federal

[[Page 1980]]

court under section 304 of the Clean Air Act, 42 U.S.C. 7604. The 
commenter also asserts that EPA's determination must, at a minimum, be 
supported by an opinion from the Maryland Attorney General's office.
    Response: Ann. Code Md. 2-106 states:

    2-106--Rights of persons other than this State.
    (a) Presumption and finding of fact.--A determination by the 
Department that air pollution exists or that a rule or regulation 
has been disregarded or violated does not create any presumption of 
law or finding of fact for the benefit of any person other than this 
State.
    (b) Proceedings.--Any proceedings under this title shall be 
brought by the Department for the benefit of the people of this 
State.
    (c) Actionable rights.--No person other than this State acquires 
actionable rights by virtue of this title.

    While this State statute does prevent citizens from bringing suit 
in federal or state court to enforce provisions of Maryland's air 
quality control law, the plain and unambiguous language of Ann. Code 
Md. 2-106 limits its scope to proceedings brought ``under this title'' 
or ``by virtue of this title'' (the ``title'' in question being 
Maryland's Title 2, entitled ``Ambient Air Quality Control''). 
Therefore, the statute does not affect any right conferred by any 
federal law. Section 304 of the Clean Air Act, 42 U.S.C. 7604, is 
federal law, and beyond the self-limiting reach of the language of Ann. 
Code Md. 2-106.
    Our previous response cited Maryland Waste Coalition v. SCM Corp., 
616 F. Supp. 1474, 1477 (D. Md. 1985). While we cited this case because 
the court specifically observed that Ann. Code Md. 2-106(c) allows only 
the State, and not private citizens, to bring an action to enforce the 
Maryland air pollution laws, it is worth noting that the SCM court did 
not cite Ann. Code Md. 2-106 as a bar to the citizen suit brought by 
the plaintiff pursuant to section 304 of the Clean Air Act. (The court 
did find that certain of the plaintiff's claims were barred by section 
304 to the extent that the plaintiff claims overlapped those in a 
previously filed enforcement action brought by EPA.)
    Furthermore, as we also pointed out in our prior response, ``had 
Maryland attempted to prescribe the types, kinds and weights to be 
ascribed to evidence entered in a federal forum, such an action would 
have obvious implications on the system of federalism established by 
the United States' Constitution.''
    Had Maryland attempted with Ann. Code Md. 2-106 to divest a right 
to bring a citizen suit under federal law in a federal court, the 
federalism implications would be just as apparent. Such a stark 
conflict with the federal statute would be nullified by the Supremacy 
Clause of the United States Constitution, which provides, ``This 
Constitution, and the Laws of the United States which shall be made in 
Pursuance thereof * * * shall be the supreme Law of the Land; and the 
Judges in every State shall be bound thereby, any Thing in the 
Constitution or Laws of any State to the contrary notwithstanding.'' 
U.S. Const. art. VI, Paragraph 2.
    Under the Supremacy Clause, everyone must follow federal law in the 
face of conflicting state law. ``It is basic to this constitutional 
command that all conflicting state provisions be without effect.'' 
Maryland v. Louisiana, 451 U.S. 725, 746 (1981), citing McCulloch v. 
Maryland, 4 Wheat. 316, 427 (1819). ``[A]
state statute is void to the 
extent it conflicts with a federal statute--if, for example, 
`compliance with both federal and state regulations is a physical 
impossibility' or where the law `stands as an obstacle to the 
accomplishment and execution of the full purposes and objectives of 
Congress.' '' Id. (internal citations omitted).
    Ann. Code Md. 2-106 does not on its face conflict with or present 
an obstacle to the full purpose and objective of Section 304 of the 
Clean Air Act. Even if such a conflict existed, the statute would be 
unconstitutional based on the Supremacy Clause as interpreted by the 
Supreme Court. Therefore, EPA can unequivocally state that Ann. Code 
Md. 2-106 does not conflict with or affect any rights conferred by 
Section 304 of the Clean Air Act, including the public's ability to 
enforce title V permit conditions in federal court. The EPA does not 
believe that obtaining an opinion from the Maryland Attorney General 
would add anything to this analysis.
    Comment: The commenter believes that a provision of Maryland law, 
Ann. Code Md. 2-611, illegally shields violators from enforcement so 
long as they operate in compliance with a compliance plan.
    Response: The EPA disagrees with this comment. On September 23, 
2002, EPA responded to a comment submitted on March 12, 2001 with 
respect to Ann. Code Md. 2-611. The original comment erroneously stated 
that this statutory provision ``amounts to a blanket waiver or 
suspension of applicable requirements, and an amendment of the permit 
without following required modification procedures, all in violation of 
title V, and that ``the provision could preclude citizens and EPA from 
enforcing permit requirements * * *'' The EPA's response was based in 
part on the Maryland Attorney General's interpretation of this 
provision. To give the proper context to the current comment, we 
believe that it is helpful to set forth EPA's response to the original 
comment in full below:
    EPA Response to Comment 6: Ann. Code Md. 2-611 provides:

    A person is not subject to action for a violation of this title 
or any rule or regulation adopted under this title so long as the 
person acts in accordance with a plan for compliance that (1) the 
person has submitted to the Secretary; and (2) the Secretary has 
approved, with or without amendments, on the recommendation of the 
Air Management Administration. The Secretary shall act on any plan 
for compliance within 90 days after the plan for compliance is 
submitted to the Secretary.

    When a State is diligently prosecuting a facility for violations of 
its permit, it is typical and reasonable to give a facility a 
compliance schedule to bring a facility into compliance with its permit 
conditions. Indeed, EPA's regulations at 40 CFR 70.5(c)(8)(iii)(C) and 
70.6(c)(3) require that a title V permit application and permit include 
a compliance plan containing a compliance schedule for requirements for 
which the covered source is not in compliance at the time of permit 
issuance. If a facility must modify its permit due to the conditions of 
a compliance plan, then that facility should follow all proper 
procedures to modify its permit as needed. This Maryland law does not 
allow a title V source to bypass the permit modification process. In 
addition, the State law does not prevent EPA from enforcing permit 
requirements (as noted in response to Comment 2, Maryland law does not 
contain a general citizen suit provision to enforce violations of its 
air pollution regulations, including permit requirements; however, this 
is not a legal deficiency in the Maryland program).
    Further, neither EPA nor MDE [Maryland Department of Environment]
interprets Ann. Code Md. 2-611 as a blanket waiver or suspension of any 
other applicable requirements for a source. Maryland has submitted to 
EPA a an opinion from the Maryland Attorney General that affirms MDE 
and EPA's position that the law applies only to violations that are 
expressly addressed by the compliance plan. See Attachment 4. EPA does 
not agree that Ann. Code Md 2-611 represents a deficiency in the 
State's part 70 program.
    The commenter apparently accepts EPA's explanation with respect to 
the points addressed above, but now asserts

[[Page 1981]]

a new defect with Ann. Code Md. 2-611, namely that ``it exempts a 
person from enforcement action for a violation of an air pollution 
limitation `so long as the person acts in accordance with a plan for 
compliance.' '' Such an exemption, the commenter asserts ``explicitly 
violates Part 70's prohibition against a compliance schedule that 
`sanction[s]
noncompliance with, the applicable requirements on which 
it is based.' '' 40 CFR 70.5(c)(8)(iii)(C).
    However, the commenter has alleged a conflict between 40 CFR 
70.5(c)(8)(iii)(C) and Ann. Code. Md. 2-611 that does not exist either 
explicitly or implicitly. The language of 40 CFR 70.5(c)(8) speaks to 
the contents of the compliance schedule. Under 70.5(c)(8) any 
compliance schedule must meet certain criteria. For example, 40 CFR 
70.5(c)(8)(iii)(C) requires that the schedule ``include a schedule of 
remedial measures, including an enforceable sequence of actions with 
milestones, leading to compliance with any applicable requirements * * 
*'' (Emphasis added.) Further, the schedule must be ``at least as 
stringent as that contained in any judicial consent decree or 
administrative order to which the source is subject.'' The last 
requirement is that ``the schedule shall be supplemental to, and shall 
not sanction noncompliance with, the applicable requirements on which 
it is based.''
    The federal regulations at 40 CFR 70.5(c)(8)(iii)(C) contemplate 
that a compliance schedule may be little more than the recitation of 
requirements set forth in a judicial consent decree or an 
administrative order that has been agreed to between the source and a 
state or federal enforcement agency to fully and finally settle a 
dispute with the source. Any such compliance schedule necessarily would 
be supplemental to the existing applicable requirements on which its 
based. The title V permits, judicial consent decree or administrative 
order that defines the schedule may not, in of themselves, amend the 
underlying legal instruments such as state regulations or permits that 
establish the subject applicable requirements. Indeed, the regulatory 
language makes clear that a compliance plan must lead to compliance 
with all applicable requirements. The commenter seems to suggest that 
the requirement that the compliance schedule ``shall be supplemental 
to, and shall not sanction noncompliance with, the applicable 
requirements on which it is based,'' essentially means that is 
mandatory that such schedules reopen concluded matters. The Agency does 
not believe that ever was the intent of this provision.
    Instead, when all provisions of 40 CFR 70.5(c)(8)(iii)(C) are read 
in pari materia the prohibition of sanctioning noncompliance with 
underlying applicable requirements necessarily must refer to all 
applicable requirements, including judicial consent decrees and 
administrative orders (a term broad enough to easily encompass the type 
of plan for compliance contemplated by Ann. Code. Md. 2-611) with which 
a source is legally obligated to comply.
    Comment: The commenter believes that Maryland has failed to 
adequately implement its operating permit program because the State did 
not issue all of its initial permits in accordance with the statutory 
three-year schedule.
    Response: On December 1, 2001, EPA's interim approval of Maryland's 
title V operating permit program lapsed because the State was unable to 
submit all of the program revisions necessary to satisfactorily address 
the deficiencies identified by EPA when it granted the State final 
interim approval. At the time of program lapse, Maryland had not taken 
final action on all of its initial operating permit program 
applications. Also on December 1, 2001, EPA granted to Maryland the 
full delegation of authority to implement and enforce the federal 
operating permit program requirements established at 40 CFR part 71. 
Once the requirements of 40 CFR part 71 took effect, the State of 
Maryland could no longer issue federally enforceable permits pursuant 
to its own program regulations. The part 71 permit program established 
a new schedule for the submittal of permit applications and issuance of 
permits by Maryland. That schedule required Maryland to issue part 71 
permits to the remaining initial permit applicants by December 1, 2004. 
As of December 1, 2001, 47 sources had not received initial title V 
permits in Maryland.
    As discussed in the September 23, 2002 letter, the State of 
Maryland has committed to EPA that it will issue the remaining 47 
permits within two years of receiving final full approval of its 
operating permit program. The two year time frame is consistent with 
the time provided other states that had failed to issue all of their 
initial operating permits within the statutory time-frame. As noted by 
the commenter, a number of states provided letters to EPA in December 
2001 committing to issue their remaining permits within two years. The 
EPA believes Maryland is capable of achieving or surpassing its 
commitment and will closely monitor the State's permit issuance rates 
once the final full approval of its program is effective. Should 
Maryland fail to make adequate progress toward meeting its commitment, 
the Agency will pursue options to address the situation, including the 
issuance of a notice of deficiency.
    Comment: The commenter believes that Maryland has inadequately 
implemented is operating permit program with respect to the operating 
permit program reporting requirements for required monitoring.
    Response: As discussed in our September 23, 2002 response, EPA 
disagrees with Earthjustice's assertion that Maryland is not 
implementing its monitoring report requirements in a manner consistent 
with the minimum requirements of part 70. Maryland's regulations with 
respect to requiring permittees to submit reports of any required 
monitoring at least every six months (hereafter, ``six-month monitoring 
reports'') are consistent with the requirements of 40 CFR 
70.6(a)(3)(iii)(A). The provisions of 40 CFR 70.6(a)(iii)(A) do not 
specify the form or content of acceptable six-month monitoring reports 
other than the requirement that all deviations from permits 
requirements must be clearly identified in the reports. Therefore, 
considerable latitude has been provided to permitting authorities to 
develop specific reporting requirements in individual permits in order 
to satisfy the six-month monitoring report requirements. The EPA 
believes that Maryland has issued permits that reasonably provide 
adequate monitoring information to assess compliance in a timely 
fashion and that the permit requirements meet the minimum requirements 
of 40 CFR 70.6(a)(3)(iii)(A).
    As noted in EPA's September 23, 2002 letter, Maryland has committed 
to modifying the manner in which it implements the six-month monitoring 
report requirements in individual permits. Upon the effective date of 
the final full approval, Maryland has committed to issue permits that 
clarify that six-month monitoring reports are required over all 
periods, including those when no deviations or excess emissions 
occurred. This change will affirm that the permits meet the requirement 
to submit monitoring reports every six months. The EPA believes 
Maryland is capable of meeting this commitment and will monitor the 
permits issued by Maryland once final full approval of its program 
becomes effective. The Agency feels it is prudent to allow Maryland an 
opportunity to demonstrate its ability to meet its commitment prior to 
determining whether a notice of deficiency is warranted.

[[Page 1982]]

    The EPA also does not believe it is necessary at this time to 
require Maryland to reopen all existing permits to further clarify the 
six-month monitoring report requirements. If the Agency becomes aware 
of a particular existing permit that, based on the facts specific to 
that permit, warrants reopening to clarify the six-month monitoring 
reporting requirements, EPA will proceed with the appropriate actions 
to ensure the permit is revised. At this time, the Agency believes that 
Maryland should focus its resources on reestablishing its program and 
issuing the remaining initial permits.
    Comment: The commenter believes Maryland's minor permit 
modification procedures apply to changes that must be subject to 
significant permit modification procedures. Specifically, the commenter 
is concerned that Maryland could inappropriately add new requirements 
to a permit or change the required test method specified in a permit 
via the minor modification process when such modifications could 
represent significant modifications.
    Response: Maryland's regulations at COMAR 26.11.03.16 specify the 
types of changes that may qualify to be processed as minor permit 
modifications. One of the requirements a proposed change must meet in 
order to be considered a minor permit modification is that the change 
is not required to be processed as a significant modification. While 
other provisions of COMAR 26.11.03.16 identify specific types of 
modifications that could be processed as minor permit modifications, 
COMAR 26.11.03.16(B)(6) requires that all minor modifications must also 
meet the test that they do not represent significant permit 
modifications. Therefore, it is important to evaluate Maryland's 
regulations with respect to the criteria for significant permit 
modification. Maryland's criteria for significant permit modifications 
at COMAR 26.11.03.17 are consistent with 40 CFR 70.7(e)(4). In summary, 
Maryland's and EPA's regulations require any changes to a permit that 
represent a significant change in existing monitoring conditions and 
any relaxation of reporting or recordkeeping conditions must be treated 
as a significant modification.
    According to COMAR 26.11.03.16, the addition of a new applicable 
monitoring, reporting, and recordkeeping requirement or the 
specification of a different approved test method must not be 
considered a significant change or relaxation of existing permit 
conditions in order to be considered a minor modification. If such 
changes constitute a significant change or relaxation, Maryland's 
regulations requires the such changes to be processed as significant 
permit modifications.
    In constructing its minor permit modification procedures, it 
appears that Maryland has attempted to provide more direction to 
permittees in terms of the types of changes that may be considered 
minor modifications than is provided in the federal regulations at 40 
CFR 70.7(e). Other than this added specificity, COMAR 26.11.03.16 is 
consistent with the minor permit modification procedures expressed at 
40 CFR 70.7(e)(2). As discussed above, this added detail does not 
authorize sources to make changes using the minor modification 
procedures that would otherwise be considered significant permit 
modifications. Furthermore, 40 CFR 70.4(b)(13) and 70.7(e) do not 
require permit programs to establish modification procedures that are 
identical to the federal requirements. Rather, state procedures must be 
substantially equivalent to procedures outlined in 40 CFR 70.7(e). The 
EPA believes that Maryland's permit modification procedures are 
substantially equivalent to 40 CFR 70.7(e) and provide adequate 
safeguards to prevent inappropriate application of the permit 
modification procedures.

C. Comments Related to Issues Raised in Earthjustice's October 10, 2002 
Letter

    The following discussion responds to comments provided by 
Earthjustice on October 10, 2002 regarding issues that are being 
identified for the first time. Earthjustice's October 10, 2002 letter 
raises concerns with portions of Maryland's program that were approved 
by EPA in 1996 and that were not the subject of the proposed full 
approval rulemaking action published on September 10, 2002. The Agency 
does not believe it is required to respond to these comments in order 
to grant final full approval to Maryland. Nonetheless, the following 
responses are provided to reinforce the merits of our approval of the 
relevant program provisions in 1996. In the event that a court finds 
that EPA is obligated to respond to these comments in order to grant 
final full approval to Maryland's program, then the following responses 
should be considered EPA's final action on the issues raised.
    Comment: The commenter believes that Maryland's operating permit 
program regulations are unclear regarding whether all emissions units, 
including ``insignificant'' emissions units, are included in operating 
permits. The commenter is particularly concerned that only ``relevant'' 
emission units are covered by operating permits.
    Response: Maryland's operating permit program regulations require, 
pursuant to numerous provisions, that all applicable requirements be 
identified in permit applications and permits. The federal regulations 
at 40 CFR 70.3(c) indicate that permits for major sources shall include 
``all applicable requirements for all relevant emission units.'' 
Maryland's regulations at COMAR 26.11.03.05(A) are virtually identical 
to the federal regulations, including the reference to ``relevant'' 
emission units. Maryland's regulations, like the federal regulations, 
do not ascribe further meaning to the term ``relevant'' emission units. 
COMAR 26.11.02.01(B)(18) defines the term ``emission unit'' to include 
``a part or activity of a stationary source, including an installation, 
that emits or has the potential to emit a regulated air pollutant or 
hazardous air pollutant listed under Sec.  112(b) of the Clean Air 
Act.'' In other words, Maryland does not limit the applicability of its 
operating permit program to certain types of units at major sources. In 
addition, like EPA's regulations at 40 CFR 70.6(a)(1), Maryland's 
regulations at COMAR 26.11.03.06(A)(1) require that part 70 permits 
assure compliance with all applicable requirements of the Clean Air 
Act. Thus, under the Clean Air Act, part 70 and Maryland's regulations, 
any permit for a major source must assure compliance with all 
applicable requirements for any and all emission units at that source. 
Maryland's regulations meet the minimum federal requirements.
    Furthermore, Maryland's regulations governing permit application 
content at COMAR 26.11.03.03(B)(14), 26.11.03.03(E), and 26.11.04(C) 
require applicants to provide all information to implement and enforce 
any applicable requirements or determine the applicability of such 
requirements; determine if a source is subject to all applicable 
requirements; and, ensure that all applicable requirements of the Clean 
Air Act are included in the permit, regardless of whether or not the 
emission unit is a ``relevant'' unit or an insignificant activity as 
defined in Maryland's regulations. Maryland's regulations at COMAR 
26.11.03.04(D) further confirms that insignificant activities or 
emission units are not exempt from any applicable requirements of the 
Clean Air Act other than those related to the amount of information 
applicants must provide in permit applications regarding those 
activities.

[[Page 1983]]

    The commenter expressed a concern with a specific provision of 
Maryland's permit regulations, COMAR 26.11.03.01(G), that affects the 
general applicability of the title V operating permit program. This 
provision indicates that major sources with title V operating permits 
are not required to also obtain a State operating permit for those 
emission units at the source covered by the title V operating permit. 
The commenter suggests that the language of this provision in some way 
implies that there are emission units at major sources that may not be 
``covered'' by the title V operating permit even if they have 
applicable requirements of the Clean Air Act. In this context, the term 
``covered'' should be interpreted to indicate that the title V 
operating permit reflects federally-enforceable applicable requirements 
of the Clean Air Act for the emission unit in question. Maryland's 
regulations are indicating that if an emission unit does not have any 
applicable requirements of the Clean Air Act that emission unit would 
not be ``covered'' by the title V permit for purposes of the major 
source's obligation to also obtain a State operating permit. As 
discussed above, Maryland's title V regulations require permits to 
reflect all applicable requirements of the Clean Air Act for all 
emission units.
    In other words, an emission unit at a major source may not have any 
Clean Air Act requirements, but it may be subject to State-only 
enforceable requirements. If that is the case, the major source must 
seek a State operating permit to ``cover'' that emission unit and to 
reflect its State-only enforceable applicable requirement. Maryland 
wants to ensure that all emission units at major sources are covered by 
either a title V operating permit or State operating permit, with all 
federal applicable requirements contained in the title V operating 
permit and any State-only enforceable requirements reflected in the 
State operating permit. Pursuant to COMAR 26.11.03.05(C), Maryland may 
also include State-only enforceable conditions in title V permits.
    Comment: The commenter believes Maryland's operating permit program 
regulations improperly allow a facility to operate pursuant to a 
general permit prior to the State's approval of its application.
    Response: The federal regulations at 40 CFR 70.5(a)(2) and 
70.7(a)(4) that describe the permit application review procedures 
indicate that, among other things, permit applications that have not 
been formally deemed incomplete by the permitting authority within 60 
days of receipt shall be deemed complete. These procedures as they are 
applied to general permits are modified by 40 CFR 70.7(a)(1)(i) in that 
complete applications for general permits do not have to be received 
prior to issuance of the subject general permit. Maryland's regulations 
at COMAR 26.11.03.02(C) are consistent with the federal regulations 
because they provide that a permit application is deemed complete 
within 60 days of receipt if the State has not informed the applicant 
that the application is incomplete or that additional information is 
required.
    As discussed earlier, 40 CFR 70.6(d) and COMAR 26.11.03.21 which 
establish the procedural requirements applicable to general permits 
clearly indicate that general permits shall comply with all 
requirements applicable to permits for individual sources. This 
includes the application procedures of 40 CFR 70.5(a)(2) and 70.7(a)(4) 
and COMAR 26.11.03.02(C) that apply to permits for individual sources. 
The commenter points out that COMAR 26.11.03.21(H) provides that a 
response to each general permit application may not be provided and 
that the general permit may specify a reasonable time after which the 
application is deemed acceptable. This provision is consistent with 40 
CFR 70.5(a)(2) and 70.7(a)(4) which allows for applications to be 
deemed acceptable after a fixed period of time if no response is 
provided by the permitting authority. It should be noted that COMAR 
26.11.03.21(G) indicates that the State may grant a determination that 
a particular applicant qualifies for a general permit. Also, COMAR 
26.11.03.21(I) indicates that Maryland may issue an applicant for a 
general permit a letter or other document approving or deny the 
application. Likewise, Maryland is required by COMAR 26.11.03.13(A)(4) 
to take action on an application for a general permit as specified in 
the framework of the general permit. These provisions establish the 
authority and expectation that the State intends to actively respond to 
applications for general permits much in the same manner Maryland 
responds to permit applications for individual sources.
    In further support of this interpretation, the granting of a major 
source's application request for authorization to operate under a 
general permit does not, according to 40 CFR 70.7(d)(6)(2) and COMAR 
26.11.03.21(G), represent a final permit action for purposes of 
judicial review. In other words, the State takes final permit action 
when it issues the final general permit and not when individual sources 
subsequently request to be covered by the general permit. Thus, the 
requirements of 42 U.S.C. 7661b(c), 40 CFR 70.4(b)(6) and 70.7(a)(2) 
regarding the permitting authorities' obligation to take action on 
permit applications by issuing or denying permits within the specified 
time periods are not directly applicable to the general permit process. 
As noted above, the federal requirements for general permits anticipate 
that permitting authorities will take final action on permits prior to 
individual sources applying for coverage under the general permit. It 
would be impractical to expect permitting authorities to act on permit 
applications in a certain time frame when no such applications may be 
submitted. In other words, sources requiring permits would not submit 
applications to be covered by a general permit before the general 
permit exists, therefore, the permitting authority would not have 
permit applications to respond to until it had already fulfilled its 
obligation by taking final action on the general permit. Again, 
practical application of the procedures for general permits do not 
clearly align with all of the applicable requirements established for 
permits for individual sources.
    The commenter is concerned that an applicant for a general permit 
that does not qualify may operate under the terms of the general permit 
if the State fails to respond to its general permit application in a 
timely fashion. The construction of Maryland's general permit 
provisions require the State to explicitly define the criteria by which 
sources may qualify for the general permit. Further, COMAR 
26.11.03.21(E) limits general permits to major sources that qualify and 
COMAR 26.11.03.21(C) stipulates that applicants are subject to 
enforcement action for operating without a permit if it is determined 
that they do not qualify for coverage under the general permit.
    The EPA appreciates the apparent tension between a number of the 
provisions in Maryland's regulations governing general permits, 
particularly with regard to COMAR 26.11.03.21(H) and the obligation of 
the State to actively respond to permit applications. While EPA 
interprets Maryland's regulations to meet the minimum requirements of 
the Clean Air Act and 40 CFR part 70, the Agency expects the State to 
employ its authority to ensure that only qualified applicants are 
covered by any general permits issued by Maryland. No general permits 
have been issued by Maryland to date and the State has indicated 
informally that the prospects of such issuance in the future are 
minimal. (See December 12, 2002 memorandum.) Should the State

[[Page 1984]]

develop a general permit, the EPA expects that Maryland would use its 
authority under COMAR 26.11.03.13(A)(1)(a) and 26.11.03.21(F), (G) and 
(I) to provide procedures in the general permit that expressly require 
an applicant to obtain an affirmative determination from the State that 
it qualifies for the general permit prior to being considered covered 
by the general permit.
    Comment: The commenter believes that Maryland's operating permit 
program regulations are inconsistent with 40 CFR part 70 with respect 
to the administrative amendment procedures. Specifically, the commenter 
is concerned that Maryland and EPA, on an ad hoc basis, may approve 
permit changes as qualifying for processing as administrative 
amendments even though they do not meet the regulatory criteria for 
processing as administrative amendments. The commenter asserts that 
because the public receives no notice of administrative amendments, the 
public must receive an opportunity to evaluate whether particular types 
of administrative amendments are appropriate.
    Response: Maryland's regulations at COMAR 26.11.03.15 define six 
types or categories of permit changes that may be processed as 
administrative amendments in a manner consistent with 40 CFR part 
70.7(d). In large part, the language of Maryland's regulations is 
identical to the federal regulations governing administrative 
amendments. The last category in both regulations indicate that other 
unspecified permit changes may be considered administrative amendments 
provided the changes are similar to those explicitly defined in the 
regulation and that EPA approves the types of changes as being similar 
to the other approved changes. Specifically, the federal provisions at 
40 CFR 70.7(d)(1)(vi) state that only changes that EPA ``has determined 
as part of the approved program to be similar to those in paragraphs 
(d)(1)(i) through (iv) of this section,'' may be considered 
administrative amendments. Maryland's regulation at COMAR 
26.11.03.15(B)(6) states that any change ``as approved by the EPA, 
which is similar to those in Section B(1)--(4) of this regulation'' may 
be considered an administrative amendment.
    The EPA does not share the commenter's concern that EPA or Maryland 
will use the slightly different phrasing of COMAR 26.11.03.15(B)(6) to 
informally change the approved list of changes that may be processed as 
administrative amendments under 40 CFR 70.6(d)(1). The EPA would 
consider any proposed change to the approved list of administrative 
amendment categories as a revision to Maryland's approved program as 
defined by 40 CFR 70.4(i). As such, the revision would have to be 
approved by EPA consistent with 40 CFR 70.4(i)(2). Should Maryland 
attempt to modify its approved list of changes qualifying for 
processing as administrative amendments and implement the modified list 
without first seeking EPA approval, the Agency would find pursuant to 
40 CFR 70.10(b) that the State was failing to implement and enforce its 
approved program. Such a finding would require the State to submit the 
necessary program revisions or face program withdrawal and other 
sanctions provided by the Clean Air Act and part 70.
    The intended effect of 40 CFR 70.7(d)(1)(vi) is to provide EPA with 
the authority to approve as part of a state's program additional types 
of permit changes that qualify for processing as administrative 
amendments. The expectation is that the state would specifically list 
the types of changes that the state proposes to be eligible for 
processing as administrative amendments as part of the state's 
operating permit regulations and submit those regulations to EPA for 
approval as revisions to the state's program. Maryland's regulation is 
simply reiterating the authority of the State to propose additional 
types of changes and the requirement that EPA must approve such 
changes. Maryland's regulations can in no way amend or alter the means 
by which EPA can approve changes to the State's approved program as 
provided by the Clean Air Act and 40 CFR part 70.
    Comment: The commenter believes Maryland's operating permit program 
regulations impermissibly allow changes at a source to occur without a 
permit revision even when such change constitutes a modification under 
title I of the Clean Air Act.
    Response: EPA stated its interpretation of what constitutes a 
``title I modification'' under the current 40 CFR part 70 in the 
preamble to proposed revisions to 40 CFR parts 70 and 71 that were 
published in the Federal Register on August 31, 1995 (60 FR 45530). In 
particular, EPA stated that the term ``title I modifications'' under 
the current regulations should be read to exclude changes subject to 
the minor new source review program in section 110(a)(2)(C) of the 
Clean Air Act. The rationale for this interpretation is set forth at 60 
FR at 45545-45546.
    Prior to the lapse of interim approval, Maryland was implementing 
its program consistent with EPA's current interpretation of what 
represents a title I modification. EPA fully expects that Maryland will 
implement its fully-approve operating permit program consistent with 
its past practices and EPA's current interpretation of what represents 
a title I modification.

How Does This Action Affect the Part 71 Program in Maryland?

    The EPA is fully approving Maryland's title V operating permit 
program. Upon the effective date of this action, the part 71 program 
will no longer be effective in Maryland. Likewise, the delegation of 
the authority to implement and enforcement the part 71 program to 
Maryland will be terminated. However, a part 71 program could become 
effective at a future date if EPA makes a finding that Maryland's title 
V program fails to meet the requirements of part 70. If such a finding 
is made, the Agency will use its authority and follow the procedures 
under section 502(i) of the Clean Air Act and 40 CFR 70.10.

Statutory and Executive Order Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this final approval is not a ``significant 
regulatory action'' and therefore is not subject to review by the 
Office of Management and Budget. Under the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.) the Administrator certifies that this final 
approval will not have a significant economic impact on a substantial 
number of small entities because it merely approves state law as 
meeting federal requirements and imposes no additional requirements 
beyond those imposed by state law. This rule does not contain any 
unfunded mandates and does not significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4) because it approves pre-existing requirements under 
state law and does not impose any additional enforceable duties beyond 
that required by state law. This rule also does not have tribal 
implications because it will not have a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes, as 
specified by Executive Order 13175, ``Consultation and Coordination 
with Indian Tribal Governments'' (59 FR 22951, November 9, 2000). This 
rule also does not have Federalism implications because it will not 
have

[[Page 1985]]

substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, ``Federalism'' (64 FR 43255, August 
10, 1999). This rule merely approves existing requirements under state 
law, and does not alter the relationship or the distribution of power 
and responsibilities between the State and the Federal government 
established in the Clean Air Act. This final approval also is not 
subject to Executive Order 13045, ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997) or Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001), because it is not a significant regulatory action 
under Executive Order 12866. This action will not impose any collection 
of information subject to the provisions of the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq., other than those previously approved and 
assigned OMB control number 2060-0243. For additional information 
concerning these requirements, see 40 CFR part 70. An agency may not 
conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.
    In reviewing State operating permit programs submitted pursuant to 
title V of the Clean Air Act, EPA will approve State programs provided 
that they meet the requirements of the Clean Air Act and EPA's 
regulations codified at 40 CFR part 70. In this context, in the absence 
of a prior existing requirement for the State to use voluntary 
consensus standards (VCS), EPA has no authority to disapprove a State 
operating permit program for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews an operating 
permit program, to use VCS in place of a State program that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective on February 14, 2003.
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by March 17, 2003. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action granting final full approval of Maryland's 
title V operating permit program may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

    Dated: January 9, 2003.
Donald S. Welsh,
Regional Administrator, Region III.

    Appendix A of part 70 of title 40, chapter I, of the Code of 
Federal Regulations is amended as follows:

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

    2. Appendix A to part 70 is amended by adding paragraph (b) in the 
entry for Maryland to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *
Maryland
* * * * *

    (b) The Maryland Department of Environmental Quality submitted 
operating permit program amendments on July 15, 2002. The program 
amendments contained in the July 15, 2002 submittal adequately 
addressed the conditions of the interim approval effective on August 
2, 1996. The State is hereby granted final full approval effective 
on February 14, 2003.

* * * * *
[FR Doc. 03-959 Filed 1-14-03; 8:45 am]
BILLING CODE 6560-50-P 

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