Title V Clean Air Act Final Interim Approval of Operating Permits Program; Maryland

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5530-4]

Title V Clean Air Act Final Interim Approval of Operating Permits

Program; Maryland

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final Interim Approval.

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SUMMARY: EPA is promulgating interim approval of the operating permits

program submitted by Maryland for the purpose of complying with federal

requirements for an approvable program to issue operating permits to

all major stationary sources, and to certain other sources. Maryland

has substantially, but not fully, met the requirements for an operating

permits program set out in title V of the Clean Air Act (CAA) and 40

CFR part 70. Upon the effective date of this program approval, those

sources must comply with Maryland's regulatory requirements to submit

an application for an operating permit pursuant to the state's

submittal schedule.

EFFECTIVE DATE: August 2, 1996.

ADDRESSES: Copies of Maryland's submittal and other supporting

information used in developing the final interim approval are available

for inspection during normal business hours at the following location:

Air, Radiation, and Toxics Division, U.S. Environmental Protection

Agency, Region III, 841 Chestnut Building, Philadelphia, PA 19107.

FOR FURTHER INFORMATION CONTACT: Lisa M. Donahue, (3AT23), Air,

Radiation and Toxics Division, U.S. Environmental Protection Agency,

Region III, 841 Chestnut Building, Philadelphia, PA 19107, (215) 566-

2062, [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

Title V of the 1990 CAA Amendments (sections 501-507 of CAA), and

implementing regulations at 40 Code of Federal Regulations (CFR) part

70 require that states seeking to administer a title V operating

permits program develop and submit a program to EPA by November 15,

1993, and that EPA act to approve or disapprove each program within 1

year after receiving the submittal. EPA's program review occurs

pursuant to section 502 of the Act and the part 70 regulations, which

together outline criteria for approval or disapproval of an operating

permits program submittal. Where a program substantially, but not

fully, meets the requirements of part 70, EPA may grant the program

interim approval for a period of up to 2 years. If EPA has not fully

approved a program by November 15, 1995, or by the expiration of the

interim approval period, it must establish and implement a federal

program.

EPA compiled a technical support document (TSD), associated with

the proposal, which contains a detailed analysis of the operating

permits program. On October 30, 1995, EPA proposed interim approval of

the operating permits program for Maryland, and requested comments on

that proposal. (See 60 FR 55231). In this document EPA is taking final

action to promulgate interim approval of the operating permits program

for Maryland.

II. Analysis of State Submission

On May 9, 1995, Maryland submitted an operating permits program to

satisfy the requirements of the CAA and 40 CFR part 70 and the

submittal was found to be administratively complete pursuant to 40 CFR

70.4(e)(1). The submittal was supplemented by additional material on

June 9, 1995. EPA reviewed the program against the criteria for

approval in section 502 of the CAA and the part 70 regulations. EPA

determined, as fully described in the notice of proposed interim

approval of the state's operating permits program (see 60 FR 55231

(October 30, 1995)) and the TSD for this action, that Maryland's

operating permits program substantially meets the requirements of the

CAA and part 70.

III. Response to Public Comments

EPA received several comments during the public comment period.

Additional comments to clarify comments submitted during the comment

period were submitted after the expiration of the public comment

period. These comments and EPA's responses are grouped into four

categories. All comments are contained

[[Page 34734]]

in the docket at the address noted in the ADDRESSES section above.

A. Judicial Standing

Comment 1: One commenter expressed the belief that EPA was

overstepping its authority in proposing that Maryland amend the

Maryland Environmental Standing Act (MESA) to afford non-state

residents and organizations the same standing rights as other

``persons'' as defined in MESA. Citing the 10th amendment to the U.S.

Constitution, the commenter argues that the regulation of state courts

is clearly a right reserved to the states and that the Maryland common

law ``specific interest or property right'' test of harm is a

reasonable criteria for determining standing in a state court that EPA

should not seek to alter.

EPA Response to comment 1: EPA does not agree that Maryland's

common law standing requirements fully meet the standards of title V.

Moreover, EPA does not believe that section 502(b)(6) of the CAA, and

the requirements of 40 CFR 70.4(b)(3)(x) regarding the necessary

opportunity for judicial review of permit actions represent an

unconstitutional invasion of state sovereignty or a coercion of state

legislative or regulatory action since, under title V, states are

required to amend their standing laws only if they wish to obtain EPA

approval under the CAA. If a state elects not to participate in

implementing title V, it is free to make that choice. EPA's position

has been upheld recently at both the Federal District Court and

Appellate Court levels. See, State of Missouri and Mel Carnahan v.

U.S., et al, No. 4:94CV01288 ELF, 1996 U.S. Dist. Lexis 3215 (E.D. Mo.

Feb. 5, 1996). See also, Commonwealth of Virginia v. Carol Browner, et

al., No. 95-1052, 1996 U.S. App. Lexis 5334 (4th Cir. Mar. 26, 1996).

Comment 2: Two commenters, including the Maryland Department of the

Environment (MDE), expressed disagreement with EPA's evaluation that

title V standing criteria must meet the minimum requirements of Article

III of the U.S. Constitution. One of these commenters disagreed with

EPA's conclusion that MESA consequently provides an inadequate

opportunity for judicial review of part 70 permits.

EPA Response to comment 2: Section 502(b)(6) states that every

approvable permit program must provide the applicant and ``any person

who participated in the public comment process'' with the opportunity

for judicial review of the final permit action in state court. The same

opportunity must also be afforded to any other person who could obtain

judicial review of the action under any applicable state law. EPA

believes that for a state title V operating permits program to be

approved by EPA, that program must provide access to judicial review to

any party who participated in the public comment process and who at a

minimum meets the threshold standing requirements of Article III of the

U.S. Constitution.

EPA's interpretation is consistent with the language, structure,

and legislative history of the Act, under which it is clear that

affected members of the public must have an opportunity for judicial

review of permit actions to ensure an adequate and meaningful

opportunity for public participation in the permit process. See,

Chafee-Baucus Statement of Senate Managers, S. 1630, the Clean Air Act

Amendments of 1990, reprinted in 136 Cong. Rec. S169941 (daily ed.

October 27, 1990). The legislative history, together with the expansive

language of section 502(b)(6), demonstrates the clear intent of the

Congress to provide citizens a broad opportunity for judicial review.

EPA's position regarding the Article III standard recently was

affirmed by the U.S. Court of Appeals for the Fourth Circuit in

Commonwealth of Virginia v. Carol M. Browner, et al., No. 95-1052, 1996

U.S. App. Lexis 5334 (4th Cir. Mar. 26, 1996). The Fourth Circuit Court

of Appeals therein held that:

Here, EPA resolved the slight tension within Sec. 502(b)(6) by

interpreting the section to require that states, at a minimum,

extend judicial review rights to participants in the state public

comment process who satisfy the standard for Article III standing.

This resolution is both authorized by Congress and reasonable, and

therefore we must reject Virginia's alternative interpretation.

Commonwealth v. Browner, 1996 U.S. App. Lexis 5334 at 25-26.

Certain parties, including non-state residents and organizations

not doing business in Maryland, do not fall within MESA's definition of

``person'' and cannot take advantage of the standing provisions of

MESA. These parties are required to establish standing for judicial

review under the Maryland common law of standing. While Maryland's

program submittal provides adequate standing for state residents and

organizations doing business in Maryland and thus substantially meets

the standing requirements of title V of the CAA and 40 CFR part 70, EPA

has concluded that Maryland standing requirements are somewhat less

favorable than the standing requirements of Article III with respect to

non-state residents and organizations not doing business in Maryland.

In order to fully meet the standing requirements for judicial review

required by CAA section 502(b)(6) and 40 CFR 70.4(b)(3)(x), MESA must

be amended to accord such non-state residents and organizations the

same standing to challenge part 70 permit decisions as other

``persons'' defined in MESA, or, in the alternative, other appropriate

legislative action must be taken to ensure that standing requirements

for such organizations are not more restrictive than the minimum

requirements of Article III of the U.S. Constitution as they apply to

federal courts.

Comment 3: One commenter argues that judicial review under the

Maryland Administrative Processes Act (APA) is unavailable in Maryland

for a part 70 permit and the scope of review under MESA is much

narrower than that afforded under the APA. The commenter further

asserts that MESA does not abrogate the existing requirement of

exhaustion of remedies, expresses due process concerns inherent under

Maryland APA standing principles and questions whether MESA can serve

as the ``primary avenue'' for third parties to obtain judicial review

of part 70 permits issued by MDE. A second commenter generally asserted

the belief that Maryland's permit program effectively precludes citizen

suits under all circumstances and is deficient in its citizen suit

``standing'' provisions.

EPA Response to comment 3: The Maryland Attorney General

acknowledges that in order to obtain judicial review under the APA, a

party must show that the party has been ``aggrieved''. The Maryland

Attorney General recognizes that MESA cannot be used for this purpose

and that MESA does not provide standing for a direct judicial review of

permit actions under Maryland's APA. See, Medical Waste Associates,

Inc. v. Maryland Waste Coalition, Inc., 327 Md. 596, 612 A.2d 241

(1992). Citing Medical Waste, the Maryland Attorney General concludes

that MESA cannot be used by a plaintiff organization to create standing

rights that the organization otherwise would not have to obtain

judicial review of a contested case decision under the APA. However,

the Maryland Attorney General concludes that the decision in Medical

Waste has relevance to the scope of review available under MESA only

with respect to MDE permits that are subject to contested case

hearings. The Maryland Attorney General states that part 70 operating

permits will not be subject to contested case proceedings and that

Medical Waste should not be seen as controlling with respect to part

[[Page 34735]]

70 permits, especially where MDE has specified that MESA is the

appropriate mechanism for obtaining judicial review of such permits.

The Maryland Attorney General acknowledges that the nature and

scope of review that is available with respect to part 70 operating

permits will depend on the issues raised by the petitioner and on the

type of action brought. However, the Maryland Attorney General notes

that the Maryland Court of Appeals, in discussing the type of review

available in an adjudicative type of permit review proceeding, has

stated that:

Consequently, such an administrative proceeding, even if not

subject to judicial review under the APA, would be subject to

judicial review, of essentially the same scope, in an action for

mandamus, certiorari, injunction, or declaratory judgment.

Medical Waste, 327 Md. at 610.

The Maryland Attorney General further asserts that, in the absence

of an express provision for review, actions for declaratory or

injunctive relief, as well as mandamus, are available to persons

challenging state permit issuance. The Maryland Attorney General notes

that a reviewing court essentially may provide the same remedies that a

person could obtain from judicial review under the APA and that MESA,

therefore, should provide the basis for judicial review of any part 70

permit in which MDE fails correctly to apply applicable CAA

requirements that pertain to the source covered under the permit. As to

the issue of exhaustion of remedies, neither title V nor 40 CFR part 70

prohibit an administrative remedy exhaustion requirement.

On the basis of the Maryland Attorney General's Opinion, it appears

that review of essentially equivalent scope as direct judicial review

is available in administrative proceedings such as permit issuances or

denials, even if not subject to direct review under the Maryland APA.

Nevertheless, Maryland could avoid the risk of any future Maryland

judicial decision interpreting MESA or Maryland's common law of

standing in such a manner as potentially to compromise Maryland's part

70 approval status if Maryland were to amend its state APA to provide

directly for the opportunity for judicial review of permit actions in

state court, consistent with CAA section 502(b)(6) and 40 CFR

70.4(b)(3)(x).

Comment 4: One commenter opines that Maryland part 70 regulations

should be able to provide expressly for standing consistent with

existing Federal law through an adoption of the Federal definition of

standing, as Maryland has done with state regulations promulgated under

the Federal Surface Mining Control and Reclamation Act.

EPA Response to comment 4: EPA believes that the commenter may have

identified one of several potential alternatives available to Maryland

to meet fully the requirements of CAA section 502(b)(6) and 40 CFR

70.4(b)(3)(x). However, EPA does not believe that Maryland must select

this particular alternative in order to maintain part 70 approval

status.

Comment 5: One commenter notes that the Maryland APA requirement

that a party be ``aggrieved'' mirrors general common law standing

principles applicable to judicial review of administrative decisions,

but asserts that Maryland imposes a ``special interest'' requirement

whereby a party ``ordinarily must'' show that his personal property

rights are specially affected in a way different from the general

public in order to have common law standing. The commenter states that

Maryland's ``special interest'' requirement differs significantly from

the ``general interest'' requirement under the Federal rule and that

the Court of Special Appeals of Maryland has virtually excluded anyone

but an adjoining property holder from meeting the ``special harm''

requirement of standing.

EPA Response to comment 5: No Maryland appellate decision has

articulated those ``interests'' which are sufficient to establish

standing on the part of an individual in an environmental permit case.

In the event that a Maryland judicial decision having precedential

effect is issued in the future which makes Maryland common law standing

requirements more stringent than Article III standing requirements, EPA

will take appropriate action under 40 CFR 70.10(c) (``Criteria for

Withdrawal of State Programs'').

Comment 6: One commenter asserts that MESA places major limitations

upon when and where a private citizen may initiate an action and that

judicial application of MESA renders nugatory MESA's supposedly broad

standing requirements.

EPA Response to comment 6: While it is clear that MESA confers

standing on any individual citizen residing ``in the county or

Baltimore City where the action is brought'', no reported Maryland

appellate decision has interpreted the additional standard set forth in

MESA which confers standing on any individual citizen able to

``demonstrate that the alleged condition, activity, or failure

complained of affects the environment where he resides.'' In the event

that a Maryland judicial decision having precedential effect is issued

in the future which makes MESA's standing requirements more stringent

than Article III standing requirements, EPA will take appropriate

action under 40 CFR 70.10(c).

Comment 7: One commenter notes that organizational standing under

Maryland common law is significantly more restrictive than under

Federal law in that the organization's members must meet the ``special

harm'' test and the organization itself must have its own ``property''

interest, separate and distinct from that of its members and the public

at large.

EPA Response to comment 7: EPA has identified the commenter's

concerns as an interim approval issue and agrees that Maryland standing

requirements are somewhat less favorable than the standing requirements

of Article III with respect to organizations not doing business in

Maryland. See, 60 FR 55231, 55233. The federal courts interpret Article

III to provide standing for organizations in actions brought to protect

the interests of their members, provided certain conditions are met.

See, Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F.Supp.

440 (D. Md. 1985). Under the Maryland common law of standing, an

organization must have an interest of its own, separate and distinct

from that of its individual members, in order to establish standing.

Medical Waste Associates, Inc. v. Maryland Waste Coalition, 327 Md. 596

(1992). However, the Maryland Attorney General notes that if at least

one plaintiff in an action for review of a permit establishes standing,

the Maryland courts will not ordinarily inquire as to whether other

plaintiffs have standing. Therefore, an organization doing business

outside of Maryland may be able to participate in a permit challenge on

behalf of its individual members if other parties having the requisite

standing also join as plaintiffs in the action.

Maryland's program submittal substantially meets the standing

requirements of title V of the CAA and 40 CFR part 70. However, in

order to meet fully the requirements of section 502(b)(6) of the CAA

and 40 CFR 70.4(b)(3)(x), MESA must be amended to accord non-state

residents and organizations not doing business in Maryland the same

standing to challenge part 70 permit decisions as other ``persons'' as

defined in MESA, or, in the alternative, other appropriate legislative

action must be taken to ensure that standing requirements for such

organizations are not more restrictive than the minimum

[[Page 34736]]

requirements of Article III of the U.S. Constitution as they apply to

federal courts.

Comment 8: One commenter questions where the Maryland Attorney

General finds support for the proposition that Maryland would recognize

a non-economic interest as sufficient for standing purposes. The

commenter considers it clear that Maryland recognizes only an

individual's ``health or property'' interest and that not one single

case allows recreational, environmental or aesthetic interests as being

sufficient to constitute the type of special interest needed to

establish standing under Maryland common law (i.e., non-MESA) standing.

EPA Response to comment 8: There are no reported cases in Maryland

that would preclude a non-economic interest (such as a recreational,

conservational or aesthetic interest) from constituting the type of

specific interest needed to establish standing under Maryland common

law. If a Maryland judicial decision having precedential effect is

issued in the future limiting the special interest required for

standing to economic interests, then the Maryland standing requirement

would become more stringent than Article III standing requirements. See

e.g., Commonwealth of Virginia v. Carol M. Browner, et al., No. 95-

1052, 1996 U.S. App. Lexis 5334 (plaintiff need not show ``pecuniary''

harm to have Article III standing; injury to health or to aesthetic,

environmental, or recreational interests will suffice). See, also,

United States v. Students Challenging Regulatory Agency Procedures

(SCRAP), 412 U.S. 669, 686-87 (1973); Sierra Club v. Morton, 405 U.S.

727, 734 (1972). EPA would then take appropriate action under 40 CFR

70.10(c).

Comment 9: One commenter asked that EPA disapprove the Maryland

part 70 Permit Program and take the first steps to institute

discretionary sanctions.

EPA Response to comment 9: Maryland's part 70 Permit Program

submittal does not meet fully the requirements of title V of the CAA

and 40 CFR part 70 and full approval by EPA is inappropriate. However,

Maryland's part 70 Permit Program submittal substantially meets the

requirements of title V of the CAA and 40 CFR part 70 and interim

approval is appropriate. During the interim approval period, which may

extend for up to 2 years, Maryland is protected from sanctions for

failure to have a fully approved title V, part 70 program. EPA may

apply discretionary sanctions, where warranted, any time after the end

of an interim approval period if Maryland has not timely submitted a

complete corrective program or EPA has disapproved a submitted

corrective program.

B. Programmatic Issues

Comment 10: A commenter disagreed with EPA's statement that any

relaxation of a compliance plan or schedule must be processed as a

significant permit modification. The commenter believes that Maryland

should be allowed discretion to process insubstantial changes to a

compliance plan or schedule as either administrative or minor permit

revisions, and cites an example. The commenter believes that it is

inappropriate to require a significant permit modification for a one

month delay in meeting a compliance milestone, when the state can

assure that the source is acting in good faith and that the delay is

beyond the source's control. The commenter believes that this provision

of the regulation (Code of Maryland Regulations (COMAR) 26.11.03.14.C)

should be approved as currently written.

EPA Response to Comment 10: EPA agrees with the comment and revises

its position, removing the requirement to revise COMAR 26.11.03.14C as

set out in the proposed interim approval notice. COMAR 26.11.03.14C

does not prohibit MDE from considering a change to a compliance plan as

a significant permit modification. Rather, it provides an additional

requirement for changes to compliance plans. Whereas sources may make

changes addressed in administrative permit amendments (see COMAR

26.11.03.15F) or minor permit modifications (with some exceptions, see

COMAR 26.11.03.16G) before MDE completes its amendment or modification,

changes to compliance plans may not be made until they have been

approved in writing. The criteria for determining the type of permit

modification that is required in any particular instance are set out at

COMAR 26.11.03.14-19. In keeping with these criteria, Maryland has the

discretion to treat ``insubstantial'' changes as administrative or

minor permit modifications, as appropriate.

Comment 11: A commenter expressed support for MDE's plan to place

fee revenues from the title V program into a segregated portion of the

Air and Radiation Management and Administration's budget. Maryland's

title V program allows surplus funds from previous years to be carried

over to the following year and used solely for the part 70 permit

program. The commenter recommended that the funds be placed in an

interest bearing account, and credited to sources, according to the

proportion of the total of all emission fees which were paid by the

source in a timely manner.

EPA Response to Comment 11: Part 70 requires that states establish

a fee schedule that results in revenues sufficient to cover the permit

program costs. Part 70 does not specify how surplus funds from one year

should be carried over to fund the next year, and does not require that

funds be placed in an interest bearing account and credited to sources.

Maryland has discretion to manage surplus funds as the state determines

is appropriate, provided that the funds are used solely for title V

purposes and in accordance with the provisions of part 70. The state is

also required under part 70.9(d) to provide periodic accounting updates

demonstrating how fee revenues are used solely to cover the costs of

implementing the title V program.

Comment 12: A commenter requested that EPA encourage Maryland to

adopt a ``trivial activities'' list and set up a process for approving

trivial activities on a case by case basis, as provided for in the

EPA's ``White Paper for Streamlined Development of Part 70 Permit

Applications.''

EPA Response to Comment 12: As discussed in the ``White Paper for

Streamlined Development Part 70 Permit Applications'', dated July 10,

1995, EPA believes that, in addition to the insignificant activity

provisions of part 70.5(c), part 70.5 allows permitting authorities to

recognize certain activities as being clearly trivial (i.e., emissions

units and activities which do not in any way implicate applicable

requirements) and that such trivial activities can be omitted from the

permit application even if not included on a list of insignificant

activities approved in a state's part 70 program. Permitting

authorities may, on a case-by-case basis and without EPA approval,

exempt additional activities which are clearly trivial. However,

additional exemptions, to the extent that the activities they cover are

not clearly trivial, still need to be approved by EPA before being

added to state lists of insignificant activities. While part 70.5 has

been interpreted to allow flexibility for the determination of trivial

activities, EPA will defer to Maryland to determine whether similar

flexibility exists under its own permit application provisions. EPA

believes that it is appropriate to have such determinations made in the

first instance at the state level as the decision of whether any

particular item should be on a state's trivial list may depend on

[[Page 34737]]

state-specific factors, such as whether the activity is subject to

state-only requirements or specific requirements of the SIP.

Comment 13: A commenter urged EPA to allow the state to provide

more time for facilities to submit permit applications. Maryland

requires facilities to submit permit applications on a staggered basis

within 4, 6 or 8 months after the effective date of EPA's approval of

the title V program. The commenter is concerned that pending

rulemakings for the title V program and monitoring requirements are

needed to determine what will be required in a title V permit

application and permit. Further, the commenter requested EPA to develop

a national standard for permit application forms, so that no one

company or state would have a greater or lesser burden in completing

its permit application.

EPA Response to Comment 13: Section 503(c) of the CAA requires that

any person required to have a permit shall submit to the permitting

authority a permit application and compliance plan not later than 12

months after the date on which the source becomes subject to the

program, or such earlier date as the permitting authority may

establish. This requirement is established by regulation at 40 CFR part

70.5(a)(1). EPA has no authority to allow states to extend the time

frame for sources to submit permit applications beyond the required 12

months. The CAA and part 70 provide states discretion to establish

earlier due dates for sources to submit permit applications. Many

states, including Maryland, have done so, particularly so that they

will be able to meet the requirement for issuing one-third of permits

within the first year of title V program approval. EPA supports states'

decisions to establish earlier due dates for permit applications and

believes that Maryland's approach is reasonable.

EPA's pending rulemakings pertaining to the title V program and

monitoring requirements do not have an impact on the information that

sources must include in permit applications. Sources subject to

Maryland's title V program, once approved, will be subject to the

requirements for permit applications found in Maryland's regulations

(primarily COMAR 26.11.03.02, 26.11.03.03, and 26.11.03.04).

EPA does not agree that a national standardized permit application

form should be established. Part 70.5(c) requires the state to provide

a standard application form(s) and provides that the permitting

authority may use its discretion in developing application forms that

best meet program needs and administrative efficiency. Part 70.5(c)

specifies the minimum types of information that must be included in

permit applications.

C. Decision for ``Interim'' Approval

Comment 14: One general comment raised with respect to several of

the proposed interim approval issues questions why such program

deficiencies warrant interim approval status. Although this same

comment was submitted with respect to several of the proposed interim

approval issues, EPA will respond to this comment generally in this

rulemaking action.

EPA Response to comment 14: The part 70 regulations define the

minimum elements required by the CAA for approval of state operating

permit programs. Section 70.4(d) authorizes EPA to grant interim

approval in situations where a state's program substantially meets the

requirements of part 70, but is not fully approvable. In reviewing

Maryland's operating permit regulations, several instances in which the

impact of seemingly ``small'' deficiencies such as vague or awkward

language, misplaced, misreferenced or mislabeled provisions prevents

EPA from being able to determine that the requirements of part 70 are

fully met. EPA identified such deficiencies as ``interim approval

issues'' which Maryland must revise, modify or otherwise clarify to

fully meet part 70's requirements. To the extent that EPA's concerns

can be satisfied through other mechanisms, regulatory revision may not

be necessary.

Comment 15: Commenters also have questioned the propriety of EPA's

proposal to grant interim approval status to Maryland's title V Program

in light of recognized deficiencies in the Program's standing

requirements for judicial review and have previously suggested that EPA

may be applying inconsistent approval standards and an inconsistent

level of review and comment among the various state and local

jurisdictions seeking operating permit program approvals under title V

of the CAA.

EPA Response to comment 15: EPA believes that MESA provides

adequate standing for judicial review to Maryland residents and

corporations, and any partnership, organization, association or legal

entity doing business in the state, all of whom are defined as

``persons'' therein. EPA further believes that the substantial majority

of challenges to state permit actions will be brought by resident

individuals and organizations doing business within the state and who

will have standing for judicial review pursuant to MESA. EPA recognizes

that non-state residents must establish standing pursuant to Maryland

common law, which requires a ``specific interest or property right''

such that the party will suffer harm that is different in kind from

that suffered from the general public. However, there are no reported

cases in Maryland that would preclude non-economic interests such as

recreational, conservational or aesthetic interests from constituting

the type of specific interest needed for standing. In the event that a

Maryland decision having precedential effect subsequently limits the

special interest required for standing to economic interests, or

otherwise makes the Maryland standing requirements more stringent that

Article III standing requirements, EPA has previously stated its intent

to take appropriate action under 40 CFR 70.10(c). EPA also

acknowledges, as an interim approval issue, that Maryland standing

requirements are somewhat less favorable than the standing requirements

of Article III with respect to organizations not doing business in

Maryland and that Maryland must accord non-state residents and

organizations not doing business in the state the same standing rights

to challenge part 70 permit decisions as other ``persons'' as defined

in MESA. In the interim, an organization doing business outside

Maryland still may be able to participate in a permit challenge on

behalf of its individual members if it joins other plaintiffs who

already have the requisite standing in the action, as Maryland courts

will not ordinarily inquire as to whether other plaintiffs have

standing.

For these reasons, EPA believes that Maryland's program currently

provides the requisite standing for judicial review to the broad

majority of prospective plaintiffs in part 70 state permit actions and

substantially meets the requirements of part 70. EPA further believes

that Maryland's program meets each of the minimum requirements of 40

CFR 70.4(d)(3), such that interim approval should be granted to

Maryland's title V Program.

EPA has applied consistent review, comment and approval standards

among the various jurisdictions seeking approval of operating permit

programs under title V of the CAA. EPA evaluates each program

separately to determine if it meets the requirements of 40 CFR part 70

and has not proposed approval for any state operating permits program

that does not substantially meet the requirements for standing for

judicial review as required by section 502(b)(6) of the Act and 40 CFR

70.4(b)(3)(x).

[[Page 34738]]

Some commenters have questioned the consistency of EPA's review,

comment and approval standards with respect to the issue of standing

for judicial review because EPA proposes to grant interim approval

status to Maryland's title V Program after acknowledging certain

deficiencies in Maryland's program submittal. These commenters note

that EPA previously denied approval of the Commonwealth of Virginia's

Program upon finding that limitations on judicial review in Virginia

did not meet the minimum threshold standing requirements of Article

III.

On the basis of five disapproval issues, including the issue of

standing for judicial review, EPA determined that Virginia's operating

program submittal did not substantially meet the requirements of part

70 and, therefore, was not eligible for interim approval. (See 59 FR

62324 (December 5, 1994)). On the issue of standing for judicial

review, EPA took particular note that section 10.1-1318(B) of the Code

of Virginia extends the right to seek judicial review only to persons

who have suffered ``actual, threatened, or imminent injury * * * ''

where ``such injury is an invasion of an immediate, legally protected,

pecuniary and substantial interest which is concrete and particularized

* * * '' and found that the limitations on judicial review in Virginia

did not meet the minimum threshold standing requirements of Article II

of the U.S. Constitution and did not meet the minimum program approval

criteria under title V. (See 59 FR 31183, 31184 (June 17, 1994)).

The strict limitations on judicial review which are contained in

Virginia's program submittal are in sharp contrast to the comparatively

minor limitations on judicial review contained in Maryland's operating

program submittal (as described above). Because Maryland's program

submittal confers general standing privileges on all state residents

and organizations doing business in the state (i.e., the broad majority

of potential plaintiffs), and for the additional reasons explained

above, EPA believes that Maryland's program submittal substantially

meets the standing requirements of title V of the CAA and 40 CFR part

70. EPA further believes that such a finding is factually appropriate

and is consistent with applicable approval standards and prior EPA

program evaluations.

D. Part 70 Supplemental Rule

Comment 16: A commenter expressed support for EPA's supplemental

proposed rule for the title V program (See 60 FR 45530, August 31,

1995) which would provide states the flexibility to match the level of

review of permit revisions to the environmental significance of the

operational change.

EPA Response to Comment 16: This comment does not pertain to EPA's

proposed interim approval action for Maryland's title V program. EPA's

approval action for Maryland is based on 40 CFR part 70 as promulgated

on July 21, 1992. Once EPA promulgates final revisions to the part 70

program, the state will be required to amend its title V program to

reflect the changes.

Final Action: EPA is promulgating interim approval of the operating

permits program submitted by Maryland on May 9, 1995, and supplemented

on June 9, 1995. Maryland must make the changes identified in the

notice of proposed rulemaking, with the exception noted in Comment 10

above, in order to fully meet the requirements of the July 21, 1992

version of part 70 (See 60 FR 55231, October 30, 1995).

The scope of Maryland's part 70 program approved in this action

applies to all part 70 sources (as defined in the approved program)

within Maryland, except any sources of air pollution over which an

Indian Tribe has jurisdiction. See, e.g., 59 FR 55813, 55815-18 (Nov.

9, 1994). The term ``Indian Tribe'' is defined under the Act as ``any

Indian tribe, band, nation, or other organized group or community,

including any Alaska Native village, which is federally recognized as

eligible for the special programs and services provided by the United

States to Indians because of their status as Indians.'' See section

302(r) of the CAA; see also 59 FR 43956, 43962 (Aug. 25, 1994); 58 FR

54364 (Oct. 21, 1993).

This interim approval extends until August 3, 1998. During this

interim approval period, Maryland is protected from sanctions for

failure to have a fully approved title V, part 70 program, and EPA is

not obligated to promulgate, administer and enforce a federal operating

permits program in Maryland. Permits issued under a program with

interim approval have full standing with respect to part 70, and the 1-

year time period for submittal of permit applications by subject

sources begins upon the effective date of this interim approval, as

does the 3-year time period for processing the initial permit

applications.

If Maryland fails to submit a complete corrective program for full

approval by February 3, 1998, EPA will start an 18-month clock for

mandatory sanctions. If Maryland then fails to submit a corrective

program that EPA finds complete before the expiration of that 18-month

period, EPA will be required to apply one of the sanctions in section

179(b) of the Act, which will remain in effect until EPA determines

that Maryland has corrected the deficiency by submitting a complete

corrective program. Moreover, if the Administrator finds a lack of good

faith on the part of Maryland, both sanctions under section 179(b) will

apply after the expiration of the 18-month period until the

Administrator determined that Maryland had come into compliance. In any

case, if, six months after application of the first sanction, Maryland

still has not submitted a corrective program that EPA has found

complete, a second sanction will be required.

If EPA disapproves Maryland's complete corrective program, EPA will

be required to apply one of the section 179(b) sanctions on the date 18

months after the effective date of the disapproval, unless prior to the

date on which the sanction would be applied Maryland has submitted a

revised program and EPA has determined that it corrected the

deficiencies that prompted the disapproval. Moreover, if the

Administrator finds a lack of good faith on the part of Maryland, both

sanctions under section 179(b) shall apply after the expiration of the

18-month period until the Administrator determines that Maryland has

come into compliance. In all cases, if, six months after EPA applies

the first sanction, Maryland has not submitted a revised program that

EPA has determined corrects the deficiencies, a second sanction is

required.

In addition, discretionary sanctions may be applied where warranted

any time after the expiration of an interim approval period if Maryland

has not timely submitted a complete corrective program or EPA has

disapproved its submitted corrective program. Moreover, if EPA has not

granted full approval to Maryland's program by the expiration of the

interim approval period, EPA must promulgate, administer and enforce a

federal permits program for Maryland upon the date the interim approval

period expires.

Requirements for approval, specified in 40 CFR 70.4(b), encompass

the CAA's section 112(l)(5) requirements for approval of a program for

delegation of section 112 standards as promulgated by EPA as they apply

to part 70 sources. Section 112(l)(5) requires that the state's program

contain adequate authorities, adequate resources for implementation,

and an expeditious compliance schedule, which are also requirements

under part 70. Therefore, EPA is also promulgating approval under

section 112(l)(5) and 40 CFR 63.91 of Maryland's program for receiving

[[Page 34739]]

delegation of section 112 standards that are unchanged from federal

standards as promulgated. This program for delegations only applies to

sources covered by the part 70 program.

Additionally, EPA is promulgating approval of Maryland's operating

permits program, under the authority of title V and part 70 for the

purpose of implementing section 112(g) to the extent necessary during

the transition period between promulgation of the federal section

112(g) rule and adoption of any necessary state rules to implement

EPA's section 112(g) regulations. However, since this approval is for

the purpose of providing a mechanism to implement section 112(g) during

the transition period, the approval of the operating permits program

for this purpose will be without effect if EPA decides in the final

section 112(g) rule that sources are not subject to the requirements of

the rule until state regulations are adopted. Although section 112(l)

generally provides the authority for approval of state air toxics

programs, title V and section 112(g) provide authority for this limited

approval because of the direct linkage between implementation of

section 112(g) and title V. Unless the federal section 112(g) rule

establishes a specific time frame for the adoption of state rules, the

duration of this approval is limited to 18 months following

promulgation by EPA of section 112(g) regulations, to provide the state

with adequate time to adopt regulations consistent with federal

requirements.

The Office of Management and Budget has exempted this action from

Executive Order 12866 review.

EPA's actions under section 502 of the Act do not create any new

requirements, but simply address operating permits programs submitted

to satisfy the requirements of 40 CFR part 70. Because this action to

grant interim approval of Maryland's operating permits program pursuant

to title V of the CAA and 40 CFR part 70 does not impose any new

requirements, it does not have a significant impact on a substantial

number of small entities.

EPA has determined that this action, promulgating interim approval

of Maryland's operating permits program, does not include a federal

mandate that may result in estimated costs of $100 million or more to

either state, local, or tribal governments in the aggregate, or to the

private sector. This federal action approves pre-existing requirements

under state or local law, and imposes no new federal requirements.

Accordingly, no additional costs to state, local, or tribal

governments, or to the private sector result from this action.

List of Subjects in 40 CFR Part 70

Environmental Protection, Administrative practice and procedure,

Air pollution control, Intergovernmental relations, Operating permits,

and Reporting and recordkeeping requirements.

Dated: June 19, 1996.

W. Michael McCabe,

Regional Administrator.

Part 70, title 40 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 the entry for

Maryland in alphabetical order to read as follows:

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

Permits Programs

* * * * *

Maryland

(a) Maryland Department of the Environment: submitted on May 9,

1995; interim approval effective on August 2, 1996; interim approval

expires August 3, 1998.

(b) Reserved

* * * * *

[FR Doc. 96-17020 Filed 7-3-96; 8:45 am]

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