Md. Code Regs. 26.11.02.11

Current through Register Vol. 51, No. 12, June 14, 2024

Section 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.

Md. Code Regs. 26.11.02.11

Regulation .11A amended effective April 26, 1993 (20:8 Md. R. 724)
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.12/10/2015