Approval and Promulgation of Air Quality Implementation Plans; Maine; Prevention of Significant Deterioration (PSD) Nitrogen Dioxide (NOINF2) Increment Regulations

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[ME-07-01-5672; A-1-FRL-4847-3]

Approval and Promulgation of Air Quality Implementation Plans;

Maine; Prevention of Significant Deterioration (PSD) Nitrogen Dioxide

(NO2) Increment Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision

submitted by the State of Maine. This revision incorporates the class I

and class II Prevention of Significant Deterioration (PSD)NO2

increments and related requirements. The intended effect of this action

is to approve a program to implement the NO2 increments in the

State of Maine in accordance with the federal PSD regulations. This

action is being taken in accordance with section 110 of the Clean Air

Act.

DATES: This final rule will become effective May 17, 1994, unless

notice is received April 18, 1994 that adverse or critical comments

will be submitted. If the effective date is delayed, timely notice will

be published in the Federal Register.

ADDRESSES: Comments may be mailed to Linda M. Murphy, Director, Air,

Pesticides and Toxics Management Division, U.S. Environmental

Protection Agency, Region I, JFK Federal Building, Boston, MA 02203.

Copies of the documents relevant to this action are available for

public inspection during normal business hours, by appointment at the

Air, Pesticides and Toxics Management Division, U.S. Environmental

Protection Agency, Region I, One Congress Street, 10th floor, Boston,

MA; Air Docket 6102, U.S. Environmental Protection Agency, 401 M Street

SW., Washington, DC 20460; and the Bureau of Air Quality Control,

Department of Environmental Protection, 71 Hospital Street, Augusta, ME

04333.

FOR FURTHER INFORMATION CONTACT: Lynne A. Hamjian, (617) 565-4181.

SUPPLEMENTARY INFORMATION: On July 16, 1990 and September 5, 1990, the

State of Maine submitted a formal revision to its SIP. The SIP revision

consists of a program to implement the NO2 increments to prevent

the significant deterioration of air quality in the State of Maine.

Background

On October 17, 1988 (53 FR 40656), EPA promulgated regulations

pursuant to section 166 of the Clean Air Act (the Act) to prevent

significant deterioration of air quality from emissions of nitrogen

oxides (NOx). These regulations establish the maximum allowable

increase in the ambient NO2 concentration above the baseline

concentration in an area. These maximum allowable increases are called

``increments.'' The increments use NO2 as the numerical measure

because NO2 is the pollutant on which the national ambient air

quality standards for NOx were based. In addition, NOx

emissions from stationary sources convert to NO2 in the

atmosphere.

The NO2 increment program has a three-tiered area

classification system which was established by Congress in section 163

for increments of sulfur dioxide and particulate matter. Class I areas

(including certain national parks and wilderness areas) were designated

by Congress as areas of special national concern, where the need to

prevent the significant deterioration in air quality is the greatest.

Therefore, the increment levels in class I areas are the most

stringent. Class II increments allow for a moderate degree of growth.

Class III increments allow for higher levels of industrial growth.

There are no class III areas in the country yet. (All areas not

specifically designated in the Act as Class I are designated as class

II, unless the state chooses to redesignate an area to class I or class

III.)

The NO2 increments for the three areas are the following:

Class I: 2.5 g/m3 annual arithmetic mean

Class II: 25 g/m3 annual arithmetic mean

Class III: 50 g/m3 annual arithmetic mean.

Forty CFR 51.166 sets forth the minimum federal requirements for

the PSD program. State PSD programs must meet all of these

requirements. The effective date of the amendments to 40 CFR 51.166

which incorporate the NO2 increments was October 17, 1989. The Act

allows states 9 months after the effective date to submit revised SIPs

incorporating the NO2 increments.

Summary of Maine's SIP Revision

The Maine Department of Environmental Protection (DEP) made

amendments to its regulations and statute which incorporate the PSD

NO2 increments and related requirements. On June 13, 1990, the

Maine Board of Environmental Protection (BEP) adopted the NO2

increments and related revisions to its regulations.

The State amended Chapter 100 ``Definitions Regulation,'' Chapter

110 ``Ambient Air Quality Standards,'' Chapter 113 ``Growth Offset

Regulation,'' and Chapter 115 ``Emission License Regulations.'' The

State also amended its New Source Review (NSR) SIP narrative. In

addition, the State deleted Chapter 108 (its former Emission Licensing

Regulation) which is no longer applicable in the State of Maine.

Chapter 115 now supersedes Chapter 108. This deletion is not part of

this rulemaking because Maine requested that EPA withdraw Chapter 108

from the SIP and EPA took action in a previous final rulemaking

document. EPA is approving an associated minor change to Chapter

115(l)(B) which deletes the grandfathering provisions for licensing.

The Maine DEP now requires all sources to comply with Chapter 115.

Finally, the State amended its definition of ``fuel burning equipment''

to clarify that equipment which combusts fuel to produce heat and power

(i.e., steam for heating, process use, and/or electrical generation) is

covered under the definition. The definition would not apply to

equipment that combusts fuel for the purpose of drying material by

direct contact with the combustion gases. This equipment would be

covered by the general process source particulate matter emissions

regulation.

The revisions establish the ambient air increments and require

applicants for PSD permits to assess increment consumption in class I

and class II areas. The Maine DEP did not submit the class III

increment and there are no class III areas in Maine. In the future, if

Maine redesignates an area to class III, it has committed to submitting

the class III increment for EPA approval. In addition, the Maine DEP

committed to developing a NOx emissions inventory, tracking

increment consumption periodically, determining increment consumption

between February 8, 1988 and July 14, 1990, and correcting any NO2

increment violations it may discover in the future.

On April 14, 1990, the Maine State Legislature adopted the NO2

increments in its statute, which became effective in the State of Maine

on July 14, 1990. The Maine Board of Environmental Protection adopted

these amendments to the regulations and they became effective in the

State of Maine on July 10, 1990. On July 16, 1990, September 5, 1990,

and November 2, 1990 the Maine DEP submitted these revisions as a SIP

revision to EPA.

EPA has evaluated these revisions and found they are equivalent to,

or in some instances, more stringent than, the requirements in 40 CFR

Sec. 51.166. Maine's NO2 increment program and EPA's evaluation

are detailed in a memorandum dated September 13, 1990 entitled

``Technical Support Document--Maine Prevention of Significant

Deterioration (PSD) Nitrogen Dioxide (NO2) Increment

Regulations.'' Copies of this memorandum are available, upon request,

from the EPA Regional Office listed in the ADDRESSES section of this

document. EPA has reviewed this SIP revision for conformance with the

provisions of the 1990 Clean Air Act Amendments enacted on November 15,

1990. This SIP revision addresses the NO2 increments and related

requirements. These NO2 increment requirements were promulgated by

EPA prior to November 15, 1990. These requirements are still mandated

under the Act; therefore, EPA is approving them in this action. Maine

is required to adopt other new source review revisions, however, in

accordance with the deadlines imposed in the Clean Air Act.\1\ EPA's

approval of the NO2 increments in no way relieves Maine of the

obligation to submit further revisions to its SIP to meet the Act's new

requirements according to the schedule contained in the Act. Maine will

be submitting these revisions to EPA as a separate package.

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\1\For example, Title I of the Clean Air Act Amendments of 1990

required Maine to submit nonattainment area NSR revisions for ozone

by November 15, 1992.

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EPA is approving this SIP revision without prior proposal because

the Agency views this as a noncontroversial amendment and anticipates

no adverse comments. This action will be effective May 17, 1994 unless,

by April 18, 1994, notice is received that adverse or critical comments

will be submitted. If such notice is received, this action will be

withdrawn before the effective date by simultaneously publishing two

subsequent documents. One document will withdraw the final action and

another will begin a new rulemaking by announcing a proposal of the

action and establishing a comment period. If no such comments are

received, the public is advised that this action will be effective on

May 17, 1994.

Final Action

EPA is approving the revisions to the definitions of ``actual

emissions'' and ``baseline concentration'' in Chapter 100(1) and

Chapter 100(9) of Maine's Definitions Regulation and Chapter 110(10)

(except for Chapter 110(10)(C)(3)) of Maine's Ambient Air Quality

Standards Regulation, Chapter 113(II)(A) of Maine's Growth Offset

Regulation and Chapter 115(I)(B), (VII)(A), (VII)(B)(3), and

(VII)(D)(3) of Maine's Emission License Regulations which adopt an

NO2 increment program. In addition EPA is approving the new source

review narrative changes to Chapter 6 ``Review of New Sources and

Modifications.'' Finally, EPA is approving a change to the definition

of ``fuel burning equipment'' in Chapter 100(29).

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

This action has been classified as a Table 3 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993,

memorandum from Michael H. Shapiro, Acting Assistant Administrator for

Air and Radiation. A future notice will inform the general public of

these tables. On January 6, 1989, the Office of Management and Budget

(OMB) waived Table 2 and Table 3 SIP revisions from the requirement of

section 3 of Executive Order 12291 for a period of two years. The US

EPA has submitted a request for a permanent waiver for Table 2 and

Table 3 SIP revisions. The OMB has agreed to continue the waiver until

such time as it rules on US EPA's request. This request continues in

effect under Executive Order 12866 which superseded Executive Order

12291 on September 30, 1993.

SIP approvals under section 110 and subchapter I, part D of the CAA

do not create any new requirements, but simply approve requirements

that the State is already imposing. Therefore, because the federal SIP-

approval does not impose any new requirements, I certify that it does

not have a significant impact on any small entities affected. Moreover,

due to the nature of the federal-state relationship under the CAA,

preparation of a regulatory flexibility analysis would constitute

federal inquiry into the economic reasonableness of state action. The

CAA forbids EPA to base its actions concerning SIPs on such grounds.

Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976);

42 U.S.C. 7410(a)(2).

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any State implementation plan. Each request for revision to

the State implementation plan shall be considered separately in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by May 17, 1994. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations, Nitrogen dioxide, Reporting and

recordkeeping requirements.

Note: Incorporation by reference of the State Implementation

Plan for the State of Maine was approved by the Director of the

Federal Register on July 1, 1982.

Dated: February 18, 1994.

Patricia L. Meaney,

Acting Regional Administrator, Region I.

Part 52 of chapter I, title 40 of the Code of Federal Regulations

is amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

Subpart U--Maine

2. Section 52.1020 is amended by adding paragraph (c)(29) to read

as follows:

Sec. 52.1020 Identification of plan.

* * * * * *

(c) * * *

(29) Revisions to the State Implementation Plan submitted by the

Maine Department of Environmental Protection on July 16, 1990,

September 5, 1990, and November 2, 1990.

(i) Incorporation by reference.

(A) Letters from the Maine Department of Environmental Protection

dated July 16, 1990, September 5, 1990, and November 2, 1990 submitting

revisions to the Maine State Implementation Plan.

(B) The definitions of actual emissions, baseline concentration,

and fuel burning equipment in Chapter 100(1), 100(9), and 100(29) of

Maine's ``Definitions Regulation,'' Chapter 110(10) (except for Chapter

110(10)(C)(3)) of Maine's ``Ambient Air Quality Standards Regulation,''

Chapter 113(II)(A) of Maine's ``Growth Offset Regulation,'' and Chapter

115(I)(B), (VII)(A), (VII)(B)(3), and (VII)(D)(3) of Maine's ``Emission

License Regulations,'' effective in the State of Maine on July 10,

1990. Note that the revised state statute which contains the underlying

authority to implement the NO2 increments became effective on July

14, 1990.

(ii) Additional materials.

(A) A state implementation plan narrative contained in Chapter 6

entitled ``Review of New Sources and Modifications.''

(B) Nonregulatory portions of the state submittal.

3. In Sec. 52.1031, Table 52.1031 is amended by adding new entries

to existing state citations for Chapter 100, Chapter 110, Chapter 113,

and Chapter 115 to read as follows:

Sec. 52.103 EPA-approved Maine regulations.

* * * * *

Table 52.1031.--EPA-Approved Rules and Regulations

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Date

State Title/Subject adopted by Date approved by Federal Register 52.1020

citation State EPA citation

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* * * * * * * *

100........ Definitions...... 07/10/90 March 18, 1994... [Insert FR (c)(29) Changes to the

citation from following

published date]. definitions:

actual

emissions,

baseline

concentration

and fuel

burning

equipment in

Chapter 100(1),

(9), and (29).

* * * * * * * *

110........ Ambient Air 07/10/90 March 18, 1994... [Insert FR (c)(29) Addition of NO2

Quality citation from increments for

Standards. published date]. class I and II

areas in

Chapter

110(10). Note

that class III

increment in

Chapter

110(10)(C)(3)

is not part of

submittal.

* * * * * * * *

113........ Growth Offset 07/10/90 March 18, 1994... [Insert FR (c)(29) Change to

Regulation. citation from Chapter

published date]. 113(II)(A) to

include NO2.

* * * * * * * *

115........ Emission License 07/10/90 March 18, 1994... [Insert FR (c)(29) Changes to

Regulation. citation from Chapter

published date]. 115(I)(B),

(VII)(A),

VII)(B)(3), and

(VII)(D)(3) to

remove Chapter

108 and to

incorporate NO2

increments

requirements.

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[FR Doc. 94-6418 Filed 3-17-94; 8:45 am]

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