Md. Code Regs. 26.11.02.11 - Procedures for Obtaining Permits to Construct Certain Significant Sources
A. Applicability.
(1) The owner or operator of a source shall
comply with the procedures in this regulation when applying for a permit to
construct for any of the activities listed in §A(2) of this regulation at
any source:
(a) For which a State permit to
operate is required, as provided in Regulation .13 of this chapter;
(b) Subject to federal new source performance
standards at 40 CFR 60, national emission standards for hazardous air
pollutants at 40 CFR 61, or prevention of significant deterioration
requirements at 40 CFR
§
52.21;
(c) That, after control, will discharge 25
tons per year or more of a pollutant regulated under Environment Article, Title
2, Annotated Code of Maryland, in the areas of Baltimore City designated by the
United States Post Office as zip code numbers 21225, 21226, and 21230;
or
(d) Of lead that will discharge
5 tons per year or more of lead or lead compounds measured as elemental
lead.
(2) This
regulation applies to applications for permits to construct for the following
activities at the sources listed in §A(1) of this regulation:
(a) Construction of a new source;
(b) Replacement of components of an existing
permitted source, if the fixed capital cost of the replacement components
exceeds 1/2 of the fixed capital cost that would be required to construct a new
source comparable in process to the existing source; and
(c) Modification of an existing permitted
source by making a physical or operational change to the source that will
result in a significant net increase in emissions of any pollutant from that
source.
(3) Before
issuing a permit to construct for any of the activities listed in §A(2) of
this regulation, at a source that is subject to federal new source performance
standards under 40 CFR 60, the Department shall either comply with the
provisions of §§E-N of this regulation, or with the following
procedures:
(a) Electronically post a notice
of an application for the permit on the Department's website in accordance with
Environment Article, §
1-602(B)(2),
Annotated Code of Maryland;
(b)
Give notice to the chief executive of any county or municipal corporation in
which any portion of the source is located or is proposed to be located; and
(c) Receive comments from the
public on the permit application.
B. Exception for an Approval and for Certain
Control Equipment. Notwithstanding the requirements of §A, this regulation
does not apply to:
(1) The approval phase of
a source for which an approval is required; and
(2) The construction or installation of air
pollution control equipment for which a permit to construct is required, as
provided in Regulation .09 of this chapter, and that will control an existing
source.
C. Consolidated
Procedures. For a source that is subject to this regulation and is also a Part
70 source, the Department may authorize special procedures, at the applicant's
request, for the applicant to apply simultaneously, to the extent possible, for
a permit to construct and a Part 70 permit, or a revision to a Part 70 permit.
These procedures may provide for combined public notices, informational
meetings, and public hearings for both permits but may not adversely affect the
rights of a person, including the EPA and affected states, to obtain
information about the application for a permit, to comment on an application,
or to challenge a permit that is issued. In addition, these procedures may not
alter any existing Part 70 permit procedures or time frames.
D. Application. The owner or operator of a
source subject to this regulation shall submit a complete application on forms
provided by the Department. The information that the Department requires may
vary depending on the type of source. The applicant shall provide information
sufficient to enable the Department to determine whether the source can be
constructed so that it can comply with all applicable requirements of the Clean
Air Act and State air pollution control law. An application shall include
evidence of compliance with State Workers' Compensation laws as required by
Environment Article, §
1-202, Annotated Code of
Maryland. Unless otherwise required by the Department, the application forms
shall be complete and include the following information:
(1) For process or manufacturing equipment or
operations:
(a) Drawings that depict the
layout of the equipment or operations;
(b) Flow sheets that depict how the equipment
or operations relate to each other;
(c) Material balance sheets;
(d) Equipment drawings and literature;
and
(e) Purchase
specifications;
(2) For
air pollution control equipment:
(a) Vendor
proposals or quotations;
(b) Vendor
guarantees;
(c) Equipment drawings
and literature; and
(d) Purchase
specifications;
(3) For
a source that will be located at a new facility:
(a) An area map; and
(b) If requested, additional information
regarding the nature of the area, including distances to residences and other
buildings.
E.
Notice of Application; Informational Meeting.
(1) The Department shall require the
applicant to send to a newspaper for publication a notice regarding the
application that satisfies the requirements of Environment Article, §
1-602(a),
Annotated Code of Maryland. As determined by the Department, the notice shall
provide for an informational meeting or an opportunity for the public to
request an informational meeting within 10 days of publication of the notice.
If the Department decides to hold an informational meeting because of requests
for a meeting, the Department shall publish or require the applicant to publish
a notice regarding the informational meeting that satisfies the requirements of
Environment Article, §
1-602(a),
Annotated Code of Maryland. Unless the Department determines otherwise, notice
of an informational meeting shall be published not later than 10 days before
the meeting is held.
(2) In
addition to the requirements under §E(1) of this regulation, on receipt of
an application for a permit to construct subject to this regulation, the
Department shall give notice immediately or require the applicant to give
notice immediately of the application, by certified mail, to:
(a) The governing body of each county or
municipal corporation in which any portion of the source is located or is
proposed to be located;
(b) The
governing body of each county or municipal corporation within 1 mile of the
property line of the source or the proposed location of the source;
(c) Each member of the General Assembly
representing any part of a county in which any portion of the source is located
or proposed to be located; and
(d)
Each member of the General Assembly representing any part of each county within
1 mile of the property line of the source or the proposed location of the
source.
F.
The Department shall ensure that the application is available to the public for
inspection and copying.
G. If an
informational meeting is held regarding the application, the applicant shall
attend the meeting and present information concerning the
application.
H. Tentative
Determination.
(1) The Department shall
prepare a tentative determination regarding the application. The content of the
tentative determination shall include:
(a) A
proposal to issue or deny the permit;
(b) Any proposed permit terms and
conditions;
(c) A brief explanation
of the Department's tentative determination;
(d) Any proposed schedule of
compliance;
(e) If the tentative
determination is to issue the permit, a draft permit, which shall be available
to the public for inspection and copying.
(2) In addition to the content of the
tentative determination, the following documents shall be made available to the
public for inspection and copying no later than the date of issuance of the
tentative determination:
(a) The permit
application and all supporting documents submitted with the application;
(b) All nonprivileged documents
the Department relied upon in making the tentative determination; and
(c) A privilege log that
identifies all withheld documents and states the reasons for withholding each
document.
I.
Notice of Tentative Determination; Public Comment; Public Hearing. The
Department shall publish or require the applicant to publish a notice regarding
the tentative determination that satisfies the requirements of Environment
Article, §
1-602, Annotated Code of
Maryland. The notice shall provide the opportunity for written public comment
for a period of 30 days, which may be extended no more than once by an
additional 60 days, upon written request received by the Department within the
original comment period. As determined by the Department, the notice shall
provide either that a public, nonadjudicatory hearing will be held regarding
the tentative determination or that the public may request in writing within 20
days that a public hearing be held. If the Department decides to hold a public
hearing because of requests for a hearing from the general public filed in
writing within the 20-day request period, or from the applicant, the Department
shall publish or require the applicant to publish a notice regarding the
hearing that satisfies the requirements of Environment Article, §
1-602(a),
Annotated Code of Maryland.
J.
Public Comments. If a public hearing is held regarding the tentative
determination, the applicant shall attend the hearing and present information
concerning the application. Written public comments will be accepted if they
are received by the Department at the public hearing or within 5 days after the
public hearing or before the close of the public comment period. Oral public
comments may be made at the public hearing. The Department shall consider all
public comments that raise issues of law or material fact regarding an
application for a permit or a tentative determination, but only if the issues
are pertinent to requirements of the Clean Air Act or State air pollution
control law applicable to the proposed permit to construct. Comments raising
issues that relate to the location or nature of a proposed source may be
considered only if the commenter first demonstrates to the satisfaction of the
Department that the Department is required by law to consider the issues.
K. Final Determination
(1) The Department shall prepare a final
determination if:
(a) Timely and pertinent
written comments are received during the public comment period, or not later
than 5 days after the public hearing, that are adverse to the tentative
determination;
(b) Oral comments
are received at the public hearing that are adverse to the tentative
determination and the Department prepared a transcript of those comments;
or
(c) The final determination is
substantively different from the tentative determination.
(2) The final determination shall constitute
the Department's final decision.
L. Notice of Final Determination.
(1) If the Department is required to prepare
a final determination, as provided in §K of this regulation:
(a) Subject to the requirements of
§L(1)(b)(i)-(iii) of this regulation, the Department shall publish or
require the applicant to publish a Notice of Final Determination that satisfies
the requirements of Environment Article, §
1-602(a),
Annotated Code of Maryland; and
(b) If the final determination differs
substantively from the tentative determination, then prior to publishing a
Notice of Final Determination pursuant to §L(1)(a) of this regulation the
Department may:
(i) Publish a Notice of
Intent to Issue a Final Determination that includes a proposed final
determination, and provides the opportunity for written public comment for a
period of 30 days on the portion of the proposed final determination that
differs substantively from the tentative determination;
(ii) Consider all public comments submitted
on the portion of the proposed final determination that differs substantively
from the tentative determination, subject to the criteria set forth in COMAR
26.11.02.11J; and
(iii) Prepare
written responses to public comments submitted on the proposed final
determination.
(2) If the Department is not required to
prepare a final determination under §K of this regulation, the Department
shall issue or deny the permit and the tentative determination becomes the
final determination and shall constitute the Department's final
decision.
(3) The Department shall
electronically post notice that the tentative determination has become the
final determination on the Department's website.
M. Judicial Review.
(1) In accordance with Environment Article,
§
1-601(c),
Annotated Code of Maryland, a final determination by the Department to issue or
deny a permit to construct subject to Environment Article, §
2-404, Annotated Code of
Maryland, shall be subject to judicial review at the request of any person who:
(a) Meets the threshold standing requirements
under federal law; and
(b) Is the
applicant or participated in a public participation process through the
submission of written or oral comments, unless an opportunity for public
participation was not provided.
(2) Judicial review shall be on the
administrative record before the Department and limited to objections raised
during the public comment period, unless the petitioner demonstrates that:
(a) The objections were not reasonably
ascertainable during the comment period; or
(b) Ground for objections arose after the
comment period.
(3)
Unless otherwise required by statute, a petition for judicial review shall be
filed with the circuit court for the county where the application for the
permit states that the proposed activity will occur.
(4) A person submitting a petition for
judicial review shall file the petition within 30 days after publication of a
Notice of Final Determination.
(5)
Except as expressly provided in Environment Article, §
1-605(d),
Annotated Code of Maryland, a party to the judicial review action may not
challenge a facility's compliance with zoning and land use requirements.
(6) Judicial review under this
regulation shall be limited to a record compiled by the Department consisting
of:
(a) Any permit application and any data
submitted to the Department in support of the application;
(b) Any draft permit issued by the
Department;
(c) Any notice of
intent from the Department to deny the application or to terminate the permit;
(d) A statement or fact sheet
explaining the basis for the determination by the Department;
(e) All documents referenced in the statement
or fact sheet explaining the basis for the determination by the Department;
(f) All documents, except
documents for which disclosure is precluded by law or that are subject to
privilege, contained in the supporting file for any draft permit;
(g) All comments submitted to the Department
during the public comment period, including comments made on the draft
application;
(h) Any tape or
transcript of any public hearings held on the application; and
(i) Any response to any comments submitted to
the Department.
N. For the purposes of this regulation, a
notice that satisfies the requirements of Environment Article, §
1-602(a),
Annotated Code of Maryland, is a notice that is published at least once a week
for 2 consecutive weeks in a daily newspaper of general circulation in the
geographic area in which the source is, or will be, located. The Department may
also require the applicant to mail notice to any other person who has requested
the notice, or to the person's authorized representative, and may require the
applicant to post the notice in the vicinity of the proposed source or at
public facilities in the geographic area of the proposed source. The applicant
shall bear all costs related to providing the notice.
Notes
Regulations .11 repealed and new Regulations .11 adopted effective May 8, 1995 (22:9 Md. R. 648)
Regulation .11A amended effective June 16, 1997 (24:12 Md. R. 866)
Regulation .11 amended effective 42:24 Md. R. 1506,eff.
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