# Approval and Promulgation of Air Quality Implementation Plans; Maryland (Actions on Permits and Approvals) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-21944 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** September 7, 1994 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [MD31-1-6371a; FRL-5059-9] Approval and Promulgation of Air Quality Implementation Plans; Maryland (Actions on Permits and Approvals) AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Maryland. This revision requires the State of Maryland to offer the public an opportunity to request a public hearing before issuing a permit to construct certain sources. The intended effect of this action is to incorporate by reference into the federally-enforceable SIP revised State regulations which meet current Federal requirements. This action is being taken under section 110 of the Clean Air Act. DATES: This final rule will become effective November 7, 1994 unless notice is received on or before October 7, 1994 that adverse or critical comments will be submitted. If the effective date is delayed, timely notice will be published in the Federal Register. ADDRESSES: Comments may be mailed to Thomas J. Maslany, Director, Air, Radiation, and Toxics Division, U.S. Environmental Protection Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107. Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air, Radiation, and Toxics Division, U.S. Environmental Protection Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107; the Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, 401 M Street, SW., Washington, DC 20460; and the Maryland Department of the Environment, 2500 Broening Highway, Baltimore Maryland 21224. FOR FURTHER INFORMATION CONTACT: Harold A. Frankford (3AT10), (215) 597-1325. SUPPLEMENTARY INFORMATION: On March 30, 1987, the State of Maryland submitted a formal revision to its State Implementation Plan (SIP). The State's submittal consists of revisions to the Code of Maryland Administrative Regulations (COMAR) 26.11.02.10C. regarding action on a permit application and approval of new sources. At the time of submittal, the official State citation for this amendment was COMAR 10.18.02.03H. However, the State recodified its air pollution regulations in 1988, and EPA approved this recodification scheme as a SIP revision on November 3, 1992 (57 FR 49651). One of the revisions associated with EPA's approval of the Maryland's recodification pertained to the transfer of the air permitting program from the Departement of Health and Mental Hygiene (DHMH) to the Department of the Environment (MDE). Therefore, EPA will address these amendments in terms of the current COMAR citations and the permitting authority currently vested with MDE. Description of Revisions The revisions to COMAR 26.11.02.10C. offers the public the opportunity to request a public hearing before the State may issue a permit to construct for any of the following scenarios: Any source will be required to obtain a permit to operate under COMAR 26.11.02.04 (formerly COMAR 10.18.02.03B.), any source subject to the Federal standards under 40 CFR part 60 (New Source Performance Standards (NSPS]), 40 CFR part 61 (National Emission Standards for Hazardous Air Pollutants (NESHAP)), or 40 CFR 52.21 (Prevention of Significant Deterioration (PSD)), any stationary source of lead (Pb) that discharges 100 tons per year or more of lead or lead compounds measured as elemental lead (Pb), any source that discharges 100 tons per year or more for any pollutant, and any new source impacting on a nonattainment area (NSINA). (Note: Effective April 26, 1993, Maryland has replaced the term ``NSINA'' with ``new source review'' (``NSR''). EPA will formally incorporate this revised term into the Maryland SIP in a separate rulemaking action.) The revised provisions to COMAR 26.11.02.10C. will be implemented by following certain procedures. If the MDE makes a preliminary determination to issue a permit or approval, the applicant will publish an advertisement in a newspaper in the area of concern which will allow 10 days for the public to request a public hearing and 30 days for public comment. If the MDE receives a request for a public hearing, the MDE will schedule a hearing. A notice of the hearing will be published in a newspaper in the area of concern at least 30 days in advance of the hearing. If a public hearing is held, the MDE must issue the permit or approval within 60 days after the conclusion of the public hearing, except that the department must issue the permit or approval within five working days after the conclusion of the public hearing if no information is presented that would affect the issuance of the permit or approval. These provisions are codified at COMAR 26.11.02.10C.(1) through 26.11.02.10C.(9). (Note: On July 27, 1993 (58 FR 40060), EPA had approved a revision to the Maryland SIP which cross-references 40 CFR 52.21 as amended through 1989. This revision is codified in the Maryland SIP at 40 CFR 52.1070(c)(95).) If the permit or approval is to be denied, it must be done within 60 days after receiving all information necessary to act on the application. (COMAR 26.11.02.10D, 26.11.02.10E). As required by 40 CFR 51.102, the State of Maryland certified that, after adequate public notice, a public hearing was held on September 30, 1986 concerning the revisions to COMAR 26.11.02.10C. EPA Evaluation The implementation of revised COMAR 26.11.02.10C. will have no adverse economic impact on the State or local agencies. Similarly, the amendment will have no direct impact on air quality because it only addresses procedural matters such as the opportunity for public hearing and does not affect any air quality standards. The amendment will give the public more opportunity to learn about and potentially influence the MDE's decisions on the issuance of permits. The specific public participation requirements found in revised COMAR 26.11.02.10C. are consistent with those found in 40 CFR 51.160 and 51.161. Final Action EPA is approving the revisions to COMAR 26.11.02.10C. as a revision to the Maryland SIP. The Agency has also reviewed this SIP revision request for conformance with the provisions of the 1990 amendments enacted on November 15, 1990, and has determined that this action conforms with those requirements irrespective of the fact that the submittal preceded the date of enactment. EPA is approving this SIP revision without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in a separate document in this Federal Register publication, EPA is proposing to approve the SIP revision should adverse or critical comments be filed. This action will be effective November 7, 1994 unless, by October 7, 1994, adverse or critical comments are received. If EPA receives such comments, this action will be withdrawn before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on this action serving as a proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. If no such comments are received, the public is advised that this action will be effective on November 7, 1994. Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future request for revision to any state implementation plan. Each request for revision to the state implementation plan shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements. Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities. 5 U.S.C. 603 and 604. Alternatively, EPA may certify that the rule will not have a significant impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and government entities with jurisdiction over populations of less than 50,000. SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not impose any new requirements, the Administrator certifies that it does not have a significant impacton any small entities affected. Moreover, due to the nature of the Federal-State relationship under the CAA, preparation of a flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2). This action has been classified as a Table 3 action for signature by the Regional Administrator under the procedures published in the Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993 memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation. The OMB has exempted this regulatory action from E.O. 12866 review. Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action to approve revisions to COMAR 26.11.02.10C. governing Maryland's public participation requirements before issuing construction permits to certain sources must be filed in the United States Court of Appeals for the appropriate circuit by November 7, 1994. 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 may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur Oxides. Dated: August 19, 1994. John R. Pomponio, Acting Regional Administrator, Region III. 40 CFR part 52 is amended as follows: PART 52--[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401-7671q. Subpart V--Maryland 2. Section 52.1070 is amended by adding paragraph (c)(108) to read as follows: Sec. 52.1070 Identification of plan. * * * * * (c) * * * (108) Revisions to the Code of Maryland Administrative Regulations (COMAR) submitted on March 30, 1987 by the Maryland Department of Health and Mental Hygiene: (i) Incorporation by reference. (A) Letter of March 30, 1987 from the Maryland Department of Health and Mental Hygiene transmitting revisions to the Maryland State Implementation Plan (SIP). (B) Revised COMAR 10.18.02.03H. (Action on an Application for a Permit and for Approval of a PSD Source or NSINA) (currently COMAR 26.11.02.10C.), effective March 24, 1987. (ii) Additional material. (A) Remainder of the March 30, 1987 State submittal pertaining to COMAR 10.18.02.03H. (currently COMAR 26.11.02.10C.). [FR Doc. 94-21944 Filed 9-6-94; 8:45 am] BILLING CODE 6560-50-F --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-21944. Public record. Not legal advice.