Chapter 01. General
Regulation .01 Scope.LinkCopy Citation
The regulations in this subtitle apply to:
A.
A person applying for a Certificate of Public Convenience and Necessity for the construction of a generating station, qualified generator lead line, or overhead transmission line, or modification to an existing electric generating station, or an overhead transmission line;
B.
A person requesting an exemption from the requirement to obtain a Certificate of Public Convenience and Necessity for the construction of a generating station under Regulation .03 of this chapter; or
C.
A person making a modification under Public Utilities Article, §7-205, Annotated Code of Maryland.
Regulation .02 Definitions.LinkCopy Citation
A.
In this subtitle, the following terms have the meanings indicated.
B.
Terms Defined.
(1)
“Aesthetic site” means a site whose aesthetic nature is:
(a)
Of general public interest; or
(b)
Officially recognized by a local, state, or federal agency charged with responsibility to oversee the protection of the environment.
(2)
“Affected community” means the residential individuals, organizations, and other entities residing:
(a)
Within a 1-mile radius of a proposed electric generating station fence line for an urban area, as defined by the Census Bureau in 76 Federal Register 53030 and 53043 (August 24, 2011); and
(b)
Within a 3-mile radius of the proposed electric generating station fence line for a rural area, as defined by the Census Bureau in 76 Federal Register 53030 and 53043 (August 24, 2011).
(3)
“Agrivoltaics” means co-development of the same area of land for both the solar generation of electricity and conventional agriculture, including but not limited to animal grazing and growing shade-tolerant crops.
(4)
“Applicant” means a person applying for:
(a)
A Certificate of Public Convenience and Necessity to:
(i)
Construct or modify an electric generating station, including its associated transmission line, if applicable;
(ii)
Construct a qualified generator lead line; or
(iii)
Construct or modify a transmission line; or
(b)
An exemption from the requirement to obtain a Certificate of Public Convenience and Necessity to construct a generating station.
(5)
“Application” means a request for:
(a)
A Certificate of Public Convenience and Necessity under Public Utilities Article, §§7-207 and 7-208, Annotated Code of Maryland, for the construction of an electric generating station including its associated transmission line, if applicable, a qualified generator lead line, or a transmission line;
(b)
A Certificate of Public Convenience and Necessity and any other approvals necessary under Public Utilities Article, §§7-205, 7-206, 7-207, or 7-208, Annotated Code of Maryland, to begin a modification to an electric generating station or an existing transmission line; or
(c)
An exemption from the requirement to obtain a Certificate of Public Convenience and Necessity for the construction of a generating station under Public Utilities Article, §7-207.1, Annotated Code of Maryland.
(6)
“Approval” as used in Public Utilities Article, §7-205, Annotated Code of Maryland, means a Certificate of Public Convenience and Necessity issued under Public Utilities Article, §§7-207 and 7-208, Annotated Code of Maryland.
(7)
“Archeological site” means a site yielding artifacts, structural remains, or evidence of occupation or use from 50 or more years ago, as designated by the Maryland Historical Trust, by the State Archeologist for the Maryland Geological Survey, or by another agency or government unit with responsibility for archeological sites.
(8)
“Associated transmission line” means a transmission line that is necessary to transport the electric output of the generating station to the electric system.
(9)
“Brownfields site” has the meaning stated in Public Utilities Article, §7-207(a)(2)(i)—(iii), Annotated Code of Maryland.
(10)
Commence.
(a)
“Commence” means, with respect to a modification and in general, initiation of physical on-site construction activities that are of a permanent nature, including installing building supports and foundations, laying of underground pipework, and constructing permanent storage structures.
(b)
“Commence” means, with respect to a change in the method of operation, those on-site activities, other than preparatory activities, that mark the initiation of the change.
(11)
“Community liaison officer” refers to an individual designated by the applicant to communicate information and coordinate activities between the applicant and the affected communities, and with whom members of the public can raise questions or concerns about the proposed project.
(12)
“Complete application” means an application for a Certificate of Public Convenience and Necessity for the construction of a generating station or an overhead transmission line, or an application for the modification to an existing electric generating station or transmission line that meets the requirements specified in Regulation .06 of this chapter.
(13)
Concept Plan.
(a)
“Concept plan” means a conceptual site plan presenting the type and arrangement of a proposed facility and its components to be located on a site.
(b)
“Concept plan” includes the information necessary under COMAR 20.79.03.01 to allow an initial evaluation of a proposed project.
(14)
Construction.
(a)
“Construction” has the meaning stated in Public Utilities Article, §7-207, Annotated Code of Maryland.
(b)
“Construction” does not mean:
(i)
A change needed for temporary use of a site or a route for a nonutility purpose or for use in securing geologicl data, including borings necessary to ascertain foundation conditions; or
(ii)
The installation of visual buffering, including vegetative screening and fencing.
(15)
“Critical Area” has the meaning stated in COMAR 27.01.01.01.
(16)
“Demand” means the rate of consumption of electricity.
(17)
“EJSCREEN” means the U.S. Environmental Protection Agency environmental justice screening and mapping tool.
(18)
“EJSCREEN ACS Report” means a printable report using the EJSCREEN tool and generated with demographic data from the U.S. Census Bureau American Community Survey, which include demographic indicators for race/ethnicity, poverty, age, educational level, and language barriers.
(19)
“EJSCREEN Standard Report” means a printable report using the EJSCREEN tool that displays the environmental and demographic indicators and indexes for the area selected.
(20)
“Electric company” has the meaning stated in Public Utilities Article, §1-101, Annotated Code of Maryland.
(21)
“Environmental review document” means a written document submitted as part of an application for a Certificate of Public Convenience and Necessity, containing the information required pursuant to COMAR 20.79.03, including the applicant’s analysis of the project’s potential environmental and socioeconomic impacts.
(22)
“Forest” has the meaning stated in Natural Resources Article, §5-1601, Annotated Code of Maryland.
(23)
Generating Station.
(a)
“Generating station” means property or facilities located in Maryland constituting an integral plant or generating unit for the production of electric energy, including any new production unit that would be added to an existing production plant.
(b)
“Generating station” does not include an integral plant or generating unit less than or equal to 2,000 kilowatts if it is installed with equipment that prevents the flow of electricity to the electric system during time periods when the electric system is out of service.
(24)
“Generating unit” means the component of a generating station that produces electrical energy and contains:
(a)
A separate electrical isolation device to prevent the flow of electricity when required for operation or maintenance;
(b)
A separate energy measurement meter;
(c)
A separate inverter, if applicable; and
(d)
The ability to be operated in an independent manner from other generating units.
(25)
“Historic site” means a site registered by the:
(a)
Maryland Historical Trust;
(b)
National Register of Historic Places;
(c)
National Register of Natural Landmarks;
(d)
Register of National Historic Landmarks; or
(e)
National Trust for Historic Preservation.
(26)
“Linear facilities” means ancillary components of a generating station that may have environmental or land use impacts in Maryland, including:
(a)
A pipeline for the delivery of fuel or cooling water; and
(b)
An associated transmission line or qualified generator lead line.
(27)
“Lot coverage” has the meaning stated in Natural Resources Article, §8-1802(a), Annotated Code of Maryland.
(28)
Modification.
(a)
“Modification” to an electric generating station has the meaning stated in Public Utilities Article, §7-205, Annotated Code of Maryland.
(b)
“Modification” to an existing transmission line means:
(i)
Obtaining new real property or additional rights-of-way through eminent domain; or
(ii)
Construction requiring larger or higher structures to accommodate increased voltage or larger conductors.
(c)
“Modification” includes any clean air modification under Public Utilities Article, §7-206, Annotated Code of Maryland.
(29)
“On-site generated electricity” has the meaning stated in Public Utilities Article, §1-101, Annotated Code of Maryland.
(30)
“Person” has the meaning stated in Public Utilities Article, §1-101, Annotated Code of Maryland.
(31)
“Person-years of employment” means a unit of measure for the amount of work performed by one person working full-time for 1 year.
(32)
“Plan” means a comprehensive and interrelated set of actions for meeting forecasted electric demand for the 10-year period from the date of the application.
(33)
“Prime farmland” means those lands which are defined by the Secretary of the United States Department of Agriculture in 7 CFR §657.5 and which have historically been used for cropland.
(34)
“Project” means a proposed generating station, including linear facilities, existing generating station modification, qualified generator lead line, transmission line, or existing transmission line modification.
(35)
“Public airport” includes a privately owned airport as defined in Public Utilities Article, §7-207, Annotated Code of Maryland.
(36)
“Qualified generator lead line” has the meaning stated in Public Utilities Article, §7-207(a)(2)(iv), Annotated Code of Maryland.
(37)
“Qualifying generating station” means a proposed fossil fuel generating station, as generating station is defined under this subtitle, that is over 70 megawatts in nameplate capacity and subject to the requirements under Public Utilities Article, §§7-207 and 7-208, Annotated Code of Maryland.
(38)
“Regulated pollutant” means:
(a)
Any pollutant for which a federal or the State ambient air quality standard has been promulgated, and any identified constituent or precursor pollutants regulated under an ambient air quality standard;
(b)
Any pollutant that is subject to any standard promulgated under 42 U.S.C. §7411;
(c)
Any Class I or Class II substance that is subject to a standard promulgated under Title VI of the Clean Air Act, 42 U.S.C. §7671 et seq.;
(d)
Any other pollutant that is otherwise subject to regulation under the Clean Air Act, 42 U.SC. §7401 et seq. or Environment Article, Title 2, Annotated Code of Maryland, except that any or all hazardous air pollutants either listed in 42 U.S.C. §7412 or added to the list under 42 U.S.C. §7412(b) are not regulated pollutants unless the listed hazardous air pollutant is also regulated as a constituent precursor of a general pollutant listed under 42 U.S.C. §7408; or
(e)
Regulated discharges under the Federal Water Pollution Control Act (the Clean Water Act), 33 U.S.C. §§1251—1387 or Environment Article, Titles 5 and 16, Annotated Code of Maryland.
(39)
“Transmission line” means property or facilities constructed in Maryland as an overhead transmission line designed to carry a voltage in excess of 69,000 volts.
Regulation .03 Exemption.LinkCopy Citation
A.
A person may file an application for an exemption from the requirement to obtain a Certificate of Public Convenience and Necessity for the construction of a generating station if the person intends to construct a generating station which meets the requirements under Public Utilities Article, §7-207.1(a), Annotated Code of Maryland.
B.
An application for an exemption from the requirement to obtain a Certificate of Public Convenience and Necessity for the construction of a generating station under §A of this regulation shall be on a form provided by the Commission.
C.
Unless otherwise directed by the Commission, a decision on an application for an exemption from the requirement to obtain a Certificate of Public Convenience and Necessity for the construction of a generating station shall be rendered not later than 90 days from the date a complete application is filed.
Regulation .04 Pre-Application Requirements for a Qualifying Generating Station.LinkCopy Citation
Prior to filing an application for a Certificate of Public Convenience and Necessity for the construction of a new qualifying generating station, unless otherwise provided under this regulation or exempted under this subtitle, an applicant shall complete the following actions, as described:
A.
Notify the Commission and the Maryland Department of Natural Resources Power Plant Research Program, in writing, of the applicant’s intent to file an application for a qualifying generating station no less than 90 days prior to filing the application, and provide information on the proposed qualifying generating station, including without limitation the type, source, and location of the proposed facility;
B.
Offer to engage the participation of the affected communities for the purpose of educating the affected communities concerning the proposed project and soliciting their feedback, including, at minimum, the following actions:
(1)
Designate a community liaison officer for the proposed project;
(2)
Identify actual community members and community organizations within the affected communities and provide notification of the proposed project and any public meeting invitation concerning the project to those community members and organizations; and
(3)
Hold a minimum of one public meeting within the county or municipal corporation in which any portion of the construction of the qualifying generating station is proposed to be located, in accordance with the following requirements:
(a)
The public meeting shall be scheduled at least 60 days before the filing of the application;
(b)
The applicant shall provide notification of the public meeting, including the time, date, and location of the meeting, by:
(i)
Placing a meeting invitation on the applicant’s website, if any, or on the applicant’s parent corporation’s website;
(ii)
Placing a meeting invitation on at least two types of social media platforms;
(iii)
Publishing an advertisement in a newspaper of general circulation in the county or municipal corporation in which the proposed facility will be located; and
(iv)
Providing a copy of the meeting invitation or newspaper advertisement to the governing body, as defined in Local Government Article, §1-101, Annotated Code of Maryland, and, if applicable, the executive of each county or municipal corporation in which the proposed facility will be located; and
(c)
The applicant shall take steps to accommodate reasonable requests to provide access to and participation in the public meeting by persons with disabilities or limited English proficiency;
C.
Prepare a statement of public engagement and participation certification, which shall describe the applicant’s efforts to provide notice to and engage the affected communities and shall include a summary discussion of what, if any, actions the applicant has agreed to take to address public concerns raised at the public meeting; and
D.
Use the EJSCREEN, or, if the EJSCREEN is unavailable, a comparable environmental hazard risk assessment and mapping tool to identify areas within affected communities that may be subject to additional impacts as a result of permitting and operating the proposed qualifying generating station, as follows:
(1)
For its numerical thresholds, the EJSCREEN shall utilize a demographic index equal to or greater than the 80th percentile, as compared to the State of Maryland, for any single census block group within a 3-mile circular buffer centered at the Geographic Information System coordinates of the proposed qualifying generating station; and
(2)
The demographic index shall comprise the average of the percentage of the population that is minority and the percentage of the population that is low-income, which is hereby defined as a household income less than or equal to twice, or 200 percent, of the federal poverty level.
Regulation .05 Pre-Application Consultation Requirement for Generating Stations.LinkCopy Citation
A.
A minimum of 90 days prior to filing an application for a Certificate of Public Convenience and Necessity for the construction of a generating station, an applicant shall take the following steps to engage and consult with the county or municipal corporation in which any portion of the project is proposed to be located:
(1)
Submit to the affected county or municipal corporation the following:
(a)
A draft environmental review document in accordance with COMAR 20.79.03.02—.04;
(b)
A properly sized conceptual site plan for the project in accordance with COMAR 20.79.03.01;
(c)
Where available for download on the Commission’s website, informational materials describing the Certificate of Public Convenience and Necessity process and the process for intervention; and
(d)
A request for a meeting, and the applicant shall make a good faith effort to meet with the staff of the affected county or municipal corporation; and
(2)
Request from the affected county or municipal corporation a preliminary report containing the following:
(a)
A statement or finding whether the proposed project is consistent with the current comprehensive plan of the county or municipal corporation;
(b)
A statement or finding whether the proposed project is consistent with the current zoning ordinance of the county or municipal corporation; and
(c)
Suggestions for improving or modifying the application prior to submission of the application with the Commission.
B.
If the applicant makes any material changes to the project as submitted under this regulation or as submitted to the Commission under Regulation .06 of this chapter, the applicant shall provide notice of the changes to the county or municipal corporation in which any portion of the project is proposed to be located.
C.
The applicant shall file with the Commission any preliminary report or other updated information received from the county or municipal corporation in which any portion of the project is proposed to be located.
D.
The applicant shall, no later than 45 days prior to filing an application for a Certificate of Public Convenience and Necessity for the construction of a generating station, meet with the staff of the Department of Natural Resources Power Plant Research Program to provide an overview of the proposed project.
Regulation .06 Application Filing Requirements.LinkCopy Citation
Except for an application for exemption under Regulation .03 of this chapter, an application for a Certificate of Public Convenience and Necessity for the construction of a generating station or transmission line, or an application for modification to an existing electric generating station or transmission line, shall include the following information:
A.
The name of the applicant;
B.
The address of the principal business office of the applicant;
C.
The name, title, mailing address, and email address of the person authorized to receive notices and communications with respect to the application;
D.
For a proposed qualifying generating station, the name, title, mailing address, and email address of the community liaison officer, if different from the person named under §C of this regulation;
E.
The location or locations at which the public may inspect a copy of the application;
F.
A list of each local, state, or federal government agency having authority to approve or disapprove the construction or operation of the project and containing a statement:
(1)
Providing the contact information for the local, state, or federal agency or unit;
(2)
Indicating whether the necessary approval from each agency has been obtained, with a copy of each approval or disapproval attached;
(3)
If necessary approval has not been obtained, specifying the reason why;
(4)
If the proposed project is pending review for approval before a local, state, or federal agency or unit, indicating the status and providing a summary of the review process and expected completion date for the review, if known; and
(5)
Indicating whether any waiver or variance has been granted or requested with a copy of each attached;
G.
For generating stations, the application shall also include:
(1)
A description of the applicant’s efforts to consult with the county or municipal corporation in which any portion of the project is proposed to be located, in accordance with Regulation .05 of this chapter, including efforts to resolve issues presented by the county or municipal corporation;
(2)
Any preliminary report provided by the affected county or the municipal corporation under Regulation .05 of this chapter;
(3)
If the affected county or municipal corporation did not provide the applicant with a preliminary report under Regulation .05 of this chapter:
(a)
A copy of any letter from the affected county or municipal corporation regarding the pendency of the county’s or municipal corporation’s review of the proposed project, if available, and, if not, a written statement indicating the status of the review, if known; and
(b)
Any written correspondence exchanged with the affected county or municipal corporation discussing the county’s or municipal corporation’s review of the proposed project and the project’s consistency with the local comprehensive plan and zoning ordinance, if available;
H.
The information required under COMAR 20.79.04.01 for transmission lines;
I.
A description of the generating station or generating station modification under COMAR 20.79.03.01, or the transmission line or the modification to an existing transmission line under COMAR 20.79.04.02 and .03;
J.
An implementation schedule for the proposed project, including, for generating stations, the construction, operation, and expected decommissioning of the project;
K.
The environmental, natural resources, and socioeconomic information:
(1)
Required under COMAR 20.79.03 for generating stations; or
(2)
Required under COMAR 20.79.04 for transmission lines;
L.
The EJSCREEN reports required under COMAR 20.79.03.05 for a proposed qualifying generating station;
M.
A signed statement of public engagement and participation certification, required under COMAR 20.79.03.06 for a proposed qualifying generating station, that the applicant made at least one attempt to engage the affected communities pursuant to Regulation .04B of this chapter prior to filing the application;
N.
If the applicant believes that a requirement for a complete application under this regulation is not applicable to a project, a statement explaining why the requirement is not applicable; and
O.
If the applicant requests a waiver of any requirement under this regulation, a statement explaining why the applicant believes the requirement should be waived.
Regulation .07 Deadlines.LinkCopy Citation
A.
Unless otherwise directed by the Commission, a decision on an application for a Certificate of Public Convenience and Necessity for the construction of an electric generating station shall be rendered not later than 365 days from the date a complete application is filed.
B.
Unless otherwise directed by the Commission, a decision on an application for modification of an electric generating station shall be rendered not later than 150 days from the date a complete application is filed.
Regulation .08 Modifications to the Facilities at a Power Plant.LinkCopy Citation
A.
Except as provided in §C of this regulation, a person may not commence a modification to the facilities at a power plant without receiving prior approval from the Commission.
B.
A physical alteration, replacement, change in the method of operation, or any other change to an electric generating unit or other facilities at a power plant that will result in an increase in air emissions is subject to the requirement to obtain approval from the Commission under Public Utilities Article, §7-205(b), Annotated Code of Maryland, if the change will result in an increase of either 75,000 tons or more per year in emissions of CO2 or an increase of 1 ton or more in emission of any other regulated pollutant.
C.
The following changes do not require prior approval of the Commission:
(1)
Routine maintenance and repair, including routine replacement;
(2)
An increase in the hours of operation or in the production rate, unless the change is prohibited under any enforceable condition established after January 6, 1975, under regulations approved under the Clean Air Act, 42 U.S.C. §7401 et seq.;
(3)
Use of an alternative fuel or raw material by reason of an order under §§2(a) and (b) of the Energy Supply and Environmental Coordination Act of 1974, 15 U.S.C. §791 et seq., or any superseding legislation, or by reason of a natural gas curtailment plan under the Federal Power Act, 16 U.S.C. §791 et seq.;
(4)
Use of an alternative fuel by reason of an order or rule under §125 of the Clean Air Act, 42 U.S.C. §7425;
(5)
Use of an alternative fuel or raw material by a stationary source which:
(a)
The source was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition established after January 6, 1975, under 40 CFR §52.21, or under regulations approved under 40 CFR Part 51, Subpart I or §51.166; or
(b)
The source is approved to use under a Certificate of Public Convenience and Necessity issued under Public Utilities Article, §§7-207 and 7-208, Annotated Code of Maryland, and any other required approvals, including permits issued under COMAR 26.11.02 or 26.11.03; or
(6)
Any change in ownership.
D.
An increase in air emissions is calculated in accordance with COMAR 26.11.17 or 26.11.06.14, as applicable.
Regulation .09 Waivers and Modifications.LinkCopy Citation
The Commission may, in its discretion, waive or modify any provision of this subtitle and may also impose additional requirements as circumstances warrant.
Regulation .10 Completeness Determination.LinkCopy Citation
A.
After an application to construct a new or modified generating station has been filed with the Commission, and within 45 days after the Commission has issued an order docketing the matter for either delegation to the Public Utility Law Judge Division or consideration by the Commission, the Maryland Department of Natural Resources Power Plant Research Program shall file a letter with the Commission stating whether the application meets the requirements under Regulation .06 of this chapter for a complete application.
B.
The applicant may respond in writing to the letter filed under §A of this regulation within 10 days, prior to the issuance of a determination of completeness.
C.
The Commission shall issue a determination on whether the application is:
(1)
Complete, and the Commission will proceed to review the request; or
(2)
Deficient, in which case the Commission shall specify the deficiency, and the applicant may submit additional information to cure the deficiency by the date set by the Commission.
D.
A CPCN application may not be deemed incomplete for failure to provide information that is not required by COMAR 20.79.01.06.
E.
A prehearing conference to set a procedural schedule or a deadline for petitions of intervention may only be held after the Commission determines that a filed application is complete.
Regulation .11 Availability of Applications and Related Materials.LinkCopy Citation
The following documents shall be made available for public inspection at the offices of the Commission and on the Commission’s website:
A.
A copy of the application for a Certificate of Public Convenience and Necessity for the construction of a generating station or transmission line, or an application for modification to an existing electric generating station or transmission line;
B.
All written public comments received by the Commission concerning the application; and
C.
Any comments and recommendations filed by a State agency or other parties concerning the application and received by the Commission.
Chapter annotations
Authority: Public Utilities Article, §§2-113, 2-121, and 7-205—7-208, Annotated Code of Maryland
History: Effective date: February 10, 1997 (24:3 Md. R. 189)
History: Chapter revised effective November 8, 2004 (31:22 Md. R. 1597)
History: Regulation .02B amended effective November 7, 2005 (32:22 Md. R. 1758)
History: Regulation .03A amended effective May 8, 2006 (33:9 Md. R. 797)
History: Chapter revised effective December 28, 2009 (36:26 Md. R. 1998)
History: Regulation .02B amended effective March 18, 2013 (40:5 Md. R. 412); February 16, 2015 (42:3 Md. R. 318)
History: Regulation .06B amended effective March 18, 2013 (40:5 Md. R. 412)
History: Regulation .08 adopted effective March 18, 2013 (40:5 Md. R. 412)
History: Chapter revised effective November 30, 2020 (47:24 Md. R. 1034)
History: Chapter revised effective September 6, 2021 (48:18 Md. R. 693)