Approval and Promulgation of Air Quality Implementation Plans; Maine: Revisions to the Requirements and Procedures for NSR/PSD License Applications

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[ME-20-01-6906a; A-1-FRL-5339-4]

Approval and Promulgation of Air Quality Implementation Plans;

Maine: Revisions to the Requirements and Procedures for NSR/PSD License

Applications

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

submitted by the State of Maine. This revision establishes and requires

the implementation of the Clean Air Act Amendments (CAAA) of 1990 with

regard to New Source Review (NSR) in

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areas which have not attained the National Ambient Air Quality

Standards (NAAQS). In addition, the revision contains minor changes to

Maine's Prevention of Significant Deterioration (PSD) program. The

intended effect of this action is to approve the State's request to

amend its SIP to satisfy the Federal requirements. This action is being

taken in accordance with the Clean Air Act.

DATES: This action is effective April 15, 1996, unless notice is

received within 30 days 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 Susan Studlien, Acting 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 and Radiation Docket and Information Center, U.S. Environmental

Protection Agency, 401 M Street SW. (LE-131), Washington, DC 20460; and

the Bureau of Air Quality Control, Department of Environmental

Protection, 71 Hospital Street, Augusta, ME 04333.

FOR FURTHER INFORMATION CONTACT: Brendan McCahill, (617) 565-3262.

SUPPLEMENTARY INFORMATION: On July 12, 1994, the Maine Department of

Environmental Protection (DEP) submitted revisions to its SIP

pertaining to the requirements and procedures for the processing and

approval of license applications for new or modified stationary sources

of air pollution. The revisions consist of modifications to Chapter

100, ``Definitions Regulations,'' Chapter 113, ``Growth Offset

Regulation,'' and Chapter 115, ``Emission License Regulation'' and

primarily affects major source licensing in nonattainment areas

including the ozone nonattainment areas.

This notice is divided into four sections for clarity. Section I

discusses the procedural background concerning Maine's SIP submittal.

Section II discusses the revisions to the general requirements for

nonattainment NSR. Section III discusses the revisions to the specific

requirements for NSR in the ozone nonattainment areas. Section IV

discusses revisions to Maine's PSD program. Section V discusses the

EPA's final action.

EPA is publishing this action without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. However, in a separate document in this Federal

Register publication, EPA is proposing to approve the SIP revision

should adverse or critical comments be filed. This action will be

effective April 15, 1996, unless, by March 15, 1996, adverse or

critical comments are received.

If the EPA receives such comments, this action will be withdrawn

before the effective date by simultaneously publishing a subsequent

notice that will withdraw the final action. All public comments

received will then be addressed in a subsequent final rule based on

this action serving as a proposed rule. The EPA will not institute a

second comment period on this action. Any parties interested in

commenting on this action should do so at this time. If no such

comments are received, the public is advised that this action will be

effective on April 15, 1996.

I. Procedural Background

Section 110(k) of the CAA sets out provisions governing EPA's

review of SIP submittals (see 57 FR 13565-13566, April 16, 1992). The

CAA requires States to observe certain procedural requirements in

developing implementation plans and plan revisions for submission to

EPA. Section 110(a)(2) of the Act provides that each implementation

plan submitted by a State must be adopted after reasonable notice and

public hearing.\1\ Section 110(l) of the Act similarly provides that

each revision to an implementation plan submitted by a State under the

Act must be adopted by such State after reasonable notice and public

hearing.

\1\ Section 172(c)(7) of the Act provides that plan provisions

for nonattainment areas shall meet the applicable provisions of

section 110(a)(2).

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The EPA also must determine whether a submittal is complete and

therefore warrants further EPA review and action (see CAA section

110(k)(1) and 57 FR 13565, April 16, 1992). The EPA's completeness

criteria for SIP submittals are set out at 40 CFR part 51, appendix V

(1991), as amended by 57 FR 42216 (August 26, 1991). The EPA attempts

to make completeness determinations within 60 days of receiving a

submission. However, a submittal is deemed complete by operation of law

under section 110(k)(1)(B) if a completeness determination is not made

by EPA within 6 months after receipt of the submission.

The State of Maine held a public hearing on May 25, 1994, to

entertain public comment on the NSR implementation plan. Following the

public hearing, the plan was adopted by Maine's Board of Environmental

Protection on June 22, 1994. The plan was filed with the Secretary of

State on July 5, 1994, and became effective on July 11, 1994. The plan

was submitted to EPA on July 12, 1994 as a proposed revision to the

SIP.

The SIP revision was reviewed by EPA to determine completeness

shortly after its submittal, in accordance with the completeness

criteria referenced above. The submittal was found to be complete on

July 14, 1994 and a letter dated July 14, 1994 was forwarded to Debrah

Richard, Acting Commissioner, Department of Environmental Protection,

indicating the completeness of the submittal and the next steps to be

taken in the review process.

II. General Requirements for Nonattainment NSR

A. Background

The air quality planning requirements for nonattainment NSR are set

out in part D of subchapter I of the Act. The EPA has issued a

``General Preamble'' describing EPA's preliminary views on how EPA

intends to review SIPs and SIP revisions submitted under part D,

including those State submittals containing nonattainment area NSR SIP

requirements (see 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April

28, 1992)). Because EPA is describing its interpretations here only in

broad terms, the reader should refer to the General Preamble for a more

detailed discussion of the interpretations of part D advanced in

today's proposal and the supporting rationale.

B. Summary of Maine's Regulation

The general nonattainment NSR requirements are found in sections

172 and 173 of part D of subchapter I of the Act and must be met by all

nonattainment areas. The following paragraphs reference the

nonattainment NSR requirements that were required to be submitted to

EPA by November 15, 1992 and explain how Maine's rules meet those

requirements. Some of these provisions were already contained in

Maine's existing SIP while others are being approved today.

1. Chapter 113(2)(A) of Maine's regulations establishes provisions

in accordance with section 173(a)(1)(A) of the CAA to assure that

calculations of emissions offsets are based on the same

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emissions baseline used in the demonstration of Reasonable Further

Progress (RFP).

2. Chapter 113(2)(C)(3) (a) and (b) of Maine's regulations

establishes provisions in accordance with section 173(c)(1) of the CAA

to allow offsets to be obtained in another nonattainment area if: (i)

The area has an equal or higher nonattainment classification; and, (ii)

emissions from the other nonattainment area contribute to a NAAQS

violation in the area in which the source would construct.

3. Chapter 113(2)(E)(3) of Maine's regulations establishes

provisions in accordance with section 173(c)(1) of the CAA that any

license to a new or modified source must be in effect and enforceable

by the time the new or modified source commences operation.

4. Chapter 113(2)(E)(3) of Maine's regulations establishes

provisions in accordance with section 173(c)(1) of the CAA to assure

that emissions increases from new or modified sources are offset by

real reductions in actual emissions.

5. Chapter 113(2)(D) (1), (2) and (3) of Maine's regulations

establishes provisions in accordance with section 173(c)(2) of the CAA

to prevent emissions reductions otherwise required by the Act from

being credited for purposes of satisfying part D offset requirements.

6. The 1990 CAAA modified the Act's provisions on growth allowances

in nonattainment areas by (1) eliminating existing growth allowances in

the nonattainment area that received a notice prior or subsequent to

the Amendments that the SIP was substantially inadequate, and (2)

restricting growth allowances to only those portions of nonattainment

areas formally targeted as special zones for economic growth. Sections

173(b) and 173(a)(1)(B) of the CAA. Maine's regulations do not contain

provisions for growth allowances and are consequently consistent with

the Act. 9

7. Chapter 115(V)(B)(2)(C) of Maine's regulations establishes

provisions in accordance with section 173(a)(5) of the CAA that, as a

prerequisite to issuing any part D license, require an analysis of

alternative sites, sizes, production processes, and analysis of

alternative sites, sizes, production processes, and environmental

control techniques for proposed sources that demonstrates that the

benefits of the proposed source significantly outweigh the

environmental and social costs imposed as a result of its location,

construction, or modification.

8. Maine and the EPA-New England office, have established a

mechanism through the Regional grants program to supply information

from nonattainment NSR licenses to EPA's RACT/BACT/LAER clearinghouse

in accordance with section 173(d) of the CAA.

9. Chapter 115(V)(B)(2)(a) of Maine's regulations establishes

provisions, in accordance with section 173(a)(3) of the CAA, to assure

that owners or operators of each proposed new or modified major

stationary source demonstrate, as a condition of license issuance, that

all other major stationary sources under the same ownership in the

State are in compliance with the CAA.

III. General Requirements for Ozone Nonattainment NSR

A. Background

The general nonattainment NSR requirements are found in sections

172 and 173 of part D of subchapter I of the Act and must be met by all

nonattainment areas. The requirements for ozone that supplement or

supersede these requirements are found in subpart 2 of part D. In

addition to requirements for ozone nonattainment areas, subpart 2

includes section 182(f), which states that requirements for major

stationary sources of VOC shall apply to major stationary sources of

oxides of nitrogen (NOX) unless the Administrator makes certain

determinations related to the benefits or contribution of NOX

control to air quality, ozone attainment, or ozone air quality. States

were required under section 182(a)(2)(C) to adopt new NSR rules for

ozone nonattainment areas by November 15, 1992.

B. Summary of Maine's Submittal

Pursuant to section 172(c)(5) of the CAA, State implementation

plans must require permits for the construction and operation of new or

modified major stationary sources in nonattainment areas. The federal

statutory permit requirements for ozone nonattainment areas are

generally contained in revised section 173, and in subpart 2 of

Subchapter I, part D of the CAA. These are the minimum requirements

that States must include in an approvable implementation plan. For all

classifications of ozone nonattainment areas and for ozone transport

regions (OTRs), States must adopt the appropriate major source

thresholds and offset ratios, and must adopt provisions to ensure that

any new or modified major stationary source of NOX satisfies the

requirements applicable to any major source of VOC, unless a special

NOX exemption is granted by the Administrator under the provision

of section 182(f). For serious and severe ozone nonattainment areas,

State plans must implement sections 182(c) (6), (7) and (8) with regard

to modifications of major sources. The State of Maine currently

contains moderate, marginal and nonclassified nonattainment areas, as

well as areas classified as attainment. However, the entire State is

contained within the OTR (see section 184 of the CAA). The CAA

provisions that apply to the OTR provide equal or more stringent

requirements than those provisions applicable to the marginal and

moderate nonattainment areas and under the CAA are applicable

throughout the State. Therefore, Maine must adopt, as a minimum, the

provisions of the CAA applicable to the OTR into its plans.

The following paragraphs reference the ozone nonattainment and OTR

NSR requirements which Maine was required to submit to EPA by November

15, 1992 and how Maine has met those requirements.

1. Chapters 100(58) and 100(101) of Maine's regulations establish a

major source threshold level for the OTR of 40 tons per year (tpy) for

VOC. Because the major source threshold level for the OTR as required

under section 184(b)(2) of the CAA is 50 tpy for VOC, Maine has met

this requirement.

2. Chapters 100(58) and 100(101) of Maine's regulations establish,

in accordance with sections 184(b)(2), 182(f) and 302(j) of the CAA, a

major source threshold level for the OTR of 100 tpy for NOX.

3. Chapter 113(2)(C) (1) and (2) of Maine's regulation establish,

in accordance with sections 184(b)(2), 182(b)(5) and 182(f) of the CAA,

an offset ratio of 1.15 to 1 for major sources or major modifications

to major sources of VOC and NOX in the OTR.

IV. Revisions to PSD and Other NSR Programs

Summary of Maine's Submittal

Permitting requirements for the construction of major new sources

and major modifications to major sources in attainment/unclassifiable

areas are set out in part C of Subchapter I of the CAA and in 40 CFR

51.166, and must be met by all State PSD program SIPs. Maine has

revised various provisions in its PSD program to make them consistent

with the Federal rules.

A brief description of the revisions is as follows:

(a) In Chapter 100(101) of Maine's regulation, the threshold level

for new major sources of NOX in NOX attainment areas was

changed from 40 to 100 tpy. This is consistent with the requirements at

40 CFR 51.166(b)(1)(i)(a).

(b) In Chapter 100(101) of Maine's regulations, the definition of

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``significant'' was revised to include the significance levels for

municipal waste combustor pollutants. The threshold levels are

consistent with the requirements at 40 CFR 51.166(b)(23)(i).

(c) Chapter 115(II)(D) of Maine's regulations establishes

provisions to exempt pollution control projects from Maine's air

emissions license requirements to the extent allowed under the CAA. To

be exempt, a project must meet all requirements of applicable State and

EPA rules, policies and guidelines which specifically address

exemptions from the NSR and PSD programs for pollution control

projects.

V. Final Action

EPA is approving the revisions to the following parts of the State

of Maine's regulations: Chapter 100, ``Definition Regulations,''

Chapter 113, ``Growth Offset Regulation'' and Chapter 115, ``Emissions

License Regulation.'' These revisions became effective on the State

level on July 11, 1994. These revisions meet the nonattainment area NSR

provisions of part D of the CAA as well as the requirements of the

General Preamble and other miscellaneous requirements.

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.

Under sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (``Unfunded Madates Act''), signed into law on March 22,

1995, EPA must undertake various actions in association with proposed

or final rules that include a Federal mandate that may result in

estimated costs of $100 million or more to the private sector, or to

State, local, or tribal governments in the aggregate.

Through submission of this state implementation plan or plan

revision, the State and any affected local or tribal governments have

elected to adopt the program provided for under Section 110 of the

Clean Air Act. These rules may bind State, local and tribal governments

to perform certain actions and also require the private sector to

perform certain duties. To the extent that the rules being approved by

this action will impose no new requirements; such sources are already

subject to these regulations under State law. Accordingly, no

additional costs to State, local, or tribal governments, or to the

private sector, result from this action. EPA has also determined that

this final action does not include a mandate that may result in

estimated costs of $100 million or more to State, local, or tribal

governments in the aggregate or to the private sector.

The OMB has exempted this action from review under Executive Order

12866.

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).

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from review under Executive Order

12866.

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 April 15, 1996. 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, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Nitrogen dioxide, Ozone,

Particulate matter, Reporting and recordkeeping requirements, Sulfur

oxides.

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: September 25, 1995.

John P. DeVillars,

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)(37) to read

as follows:

Sec. 52.1020 Identification of plan

* * * * *

(c) * * *

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

Maine Department of Environmental Protection on July 12, 1994.

(i) Incorporation by reference.

(A) Letter from the Maine Department of Environmental Protection

dated July 5, 1994 submitting a revision to the Maine State

Implementation Plan.

(B) Maine's Chapter 100 entitled, ``Definition Regulations.'' This

regulation was effective in the State of Maine on July 11, 1994.

(C) Maine's Chapter 113 entitled, ``Growth Offset Regulation.''

This regulation was effective in the State of Maine on July 11, 1994.

(D) Maine's Chapter 115 entitled, ``Emission License Regulation,''

except for Section 115(VII)(E) of this Chapter and all references to

this Section. This regulation was effective in the State of Maine on

July 11, 1994.

(ii) Additional materials.

(A) Nonregulatory portions of the State submittal.

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

to the end of existing state citations for Chapters 100, 113 and 115 to

read as follows:

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Sec. 52.1031 EPA-approved Maine regulations.

* * * * *

Table 52.1031--EPA-Approved Rules and Regulations

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Date Date

State citation Title/subject adopted by approved by Federal Register citation 52.1020

State EPA

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* * * * * * *

100.............. Definitions Regulation........ 6/22/94 2/14/96 [Insert FR citation from (c)(37).......... Addition of 1990 Part D

published date]. NSR and other CAAA

requirements.

* * * * * * *

113.............. Growth Offset Regulation...... 6/22/94 2/14/96 [Insert FR citation from (c)(37).......... Addition of 1990 Part D

published date]. NSR requirements.

* * * * * * *

115.............. Emission License Regulation... 6/22/94 2/14/96 [Insert FR citation from (c)(37).......... Addition of 1990 Part D

published date]. NSR and other CAAA

requirements.

* * * * * * *

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Sec. 52.1026 [Amended]

4. Sec. 52.1026 is amended by adding the words ``as amended by the

CAAA of 1990.'' to the last sentence.

[FR Doc. 96-3235 Filed 2-13-96; 8:45 am]

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