Agenda - Planning Commission - 10/03/2013

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Zoning Bulletin September 10, 2013 I Volume 7 I Issue 17 Maryland Code § 2 -404 governs the issuance of permits to construct emissions sources. Section 2- 404(b)(1) prohibits the Department from processing an application for a permit until the applicant submits documentation: "(i) That demonstrates that the [proposed source] has been approved by the local jurisdiction for all zoning and land use requirements; or (ii) That the source meets all applicable zoning and land use requirements." - In other words, the successful applicant has to show that the project has received approval from the local authority or otherwise satisfies lo- cal law. Thereafter, Dominion filed a zoning application with the Town of Myersville. In August, the Town of Myersville denied Dominion's zoning application on the grounds that the proposed compressor station was contrary to the local development plan, endangered public health, and posed a nuisance. On December 20, 2012, FERC issued a certificate of public conve- nience and necessity for a number of Dominion facilities, including the compressor station in Myersville. With that certificate, Dominion ap- plied to the Department once again for an air quality permit. Its cover letter stated it now satisfied § 2- 404(b)(1) because all local zoning and land use requirements had been preempted by FERC's certificate and were therefore not "applicable." The Department refused to proceed with the application because Dominion had "failed to provide the documentation of compliance required by § 2- 404(b)(1)." Dominion subsequently petitioned the United States Court of Ap- peals, District of Columbia Circuit, for review of the Department's reasons for refusing to process its application. (The NGA provides for expedited judicial review of federal or state agency action or inaction that deprives a company building a FERC- certified natural gas facility of an authorization it requires to proceed with construction. (See 15 U.S.C.A. § 717r(d).)) In its petition, Dominion argued that the Department acted contrary to law by requiring a demonstration under § 2- 404(b)(1) that the proposed compressor station was in compliance with local law. Dominion argued that the NGA preempted that state law requirement to the extent that it called for more from a natural gas facility than did FERC. Alternatively, Dominion asserted that it had in fact complied with the terms of § 2- 404(b)(1). Dominion noted that § 2- 404(b)(1) requires documentation of compliance with "applicable" local require- ments, then argued that local law preempted by a federal law is not "applicable" because the Supremacy Clause bars its enforcement by a state agency. FERC's certificate preempts all local requirements that © 2013 Thomson Reuters 9