Approval and Promulgation of Air Quality Implementation Plans; Maine (General Conformity Rule)

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[ME-046-6996a; A-1-FRL-5894-8]

Approval and Promulgation of Air Quality Implementation Plans;

Maine (General Conformity Rule)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

submitted by the State of Maine for the purpose of implementing General

Conformity (Section 176(c)(4)(C) of the Clean Air Act (CAA), and its

regulations, 40 CFR part 51, subpart W), which requires federal actions

to conform to all applicable implementation plans developed pursuant to

section 110 and part D of the CAA. The Maine SIP incorporates by

reference the criteria and procedures set forth at 40 CFR part 51,

subpart W. This general conformity SIP revision will enable the State

of Maine to implement and enforce the Federal general conformity

requirements in Maine's nonattainment and maintenance areas at the

State and local level. This action is being taken in accordance with

the Clean Air Act.

DATES: This action is effective November 24, 1997, unless EPA receives

adverse or critical comments by October 23, 1997. If the effective date

is delayed, timely notice will be published in the Federal Register.

ADDRESSES: Comments may be mailed to Susan Studlien, Deputy Director,

Office

[[Page 49609]]

of Ecosystem Protection (mail code CAA), 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 Office of Ecosystem

Protection, U.S. Environmental Protection Agency, Region I, One

Congress Street, 11th 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: Donald O. Cooke, (617) 565-3508, at

the EPA Region I address above.

SUPPLEMENTARY INFORMATION: Section 176(c) of the Clean Air Act, as

amended (the Act), requires the EPA to promulgate criteria and

procedures for demonstrating and ensuring conformity of Federal actions

to an applicable implementation plan developed pursuant to section 110

and part D of the Act. EPA promulgated a final rulemaking on November

30, 1993 consisting of 40 CFR part 93, subpart B, ``Determining

Conformity of General Federal Actions to State or Federal

Implementation Plans,'' which applied to Federal agencies immediately

(hereafter referred to as the General Conformity rule); and 40 CFR part

51, subpart W, ``Determining Conformity of General Federal Actions to

State or Federal Implementation Plans,'' which established requirements

for States in submitting SIPs. The general conformity rules, except for

the 40 CFR 51.851(a) language requiring State submission of a SIP

revision, are repeated at 40 CFR part 93, subpart B. The General

Conformity rule establishes the criteria and procedures governing the

determination of conformity for all Federal actions, except Federal

highway and transit actions.

The General Conformity rule also establishes the criteria for EPA

approval of SIPs. See 40 CFR 51.851 and 93.151. These criteria provide

that the state provisions must be at least as stringent as the

requirements specified in EPA's General Conformity rule, and that they

can be more stringent only if they apply equally to Federal and non-

Federal entities (Sec. 51.851(b)). The federal General Conformity rule

has been incorporated by reference so Maine's rule is no more stringent

than the federal rule and does not impose any additional controls on

non-federal entities.

On October 11, 1996, the State of Maine submitted a formal revision

to its State Implementation Plan (SIP). The SIP revision consists of

incorporating by reference 40 CFR 51.850, 51.852, 51.853, 51.854,

51.855, 51.856, 51.857, 51.858, 51.859 and 51.860 thereby establishing

general conformity criteria and procedures in the Maine SIP. This

proposed SIP revision was the subject of a public hearing held on

August 14, 1996 in accordance with federal and state administrative

requirements. The Maine Board of Environmental Protection adopted

``State Chapter 141--Conformity of General Federal Actions,'' that

became effective September 28, 1996. The Maine Office of the Attorney

General has certified Chapter 141 as to form and legality.

I. Summary of SIP Revision

The purpose of the General Conformity Rule is to ensure that all

Federal actions [except for Federal actions related to transportation

projects funded or approved under Title 23 U.S.C. or the Federal

Transit Act (49 U.S.C. 1601 et seq.) which are regulated under

Transportation Conformity], conform to the appropriate SIP developed

pursuant to Section 110 and part D of the CAA. Section 176(c) of the

CAA, 42 U.S.C. 7506(c), provides that no Federal department, agency, or

instrumentality shall engage in, support in any way or provide

financial assistance for, license or permit, or approve any activity

which does not conform to a SIP that has been approved or promulgated

pursuant to the CAA. Conformity is defined in section 176(c) of the CAA

as conformity to the SIP's purpose of eliminating or reducing the

severity and number of violations of the National Ambient Air Quality

Standards (NAAQS) and achieving expeditious attainment of such

standards, and that such activities will not: (1) Cause or contribute

to any new violation of any standard in any area; (2) interfere with

provisions in the applicable SIP for maintenance of any standard; (3)

increase the frequency or severity of any existing violation of any

standard in any area; or (4) delay timely attainment of any standard or

any required interim emission reductions or other milestones in any

area.

The CAA ties conformity to attainment and maintenance of the NAAQS.

Conformity therefore applies only in areas that are non-attainment or

maintenance with respect to any of the criteria pollutants under the

CAA: carbon monoxide (CO), lead (Pb), nitrogen dioxide

(NO2), ozone (O3), particulate matter

(PM10), and sulfur dioxide (SO2). The rule covers

direct and indirect emissions of criteria pollutants or their

precursors that are reasonably foreseeable and caused by a Federal

action.

II. Evaluation of the State's Submittal

Pursuant to the requirements under Section 176(c)(4)(C) of the CAA

the Maine DEP submitted a SIP revision to the EPA on October 11, 1996.

The EPA found this submittal to be complete on November 14, 1996. In

its submittal, the State adopted through incorporation by reference,

``EPA's general conformity rule 40 CFR part 51, subpart W,

Secs. 51.850, 51.852, 51.853, 51.854, 51.855, 51.856, 51.857, 51.858,

51.859, and 51.860'' (as published on November 30, 1996 at 58 FR 63247-

63253), in Chapter 141 of the Maine Department of Environmental

Protection Air Regulation entitled, ``Conformity of General Federal

Actions''.

General conformity is required for all areas which are designated

nonattainment or maintenance for any NAAQS criteria pollutant. The

State of Maine currently has six areas where the general conformity

rule must be implemented: three areas designated ozone nonattainment;

one area designated ozone maintenance; one designated particulate

matter (PM10) maintenance area; and one designated sulfur

dioxide (SO2) maintenance area. The ozone areas for which

conformity determinations are required and which are governed by

general conformity include the following counties: Hancock; Waldo;

Knox; Lincoln; Androscoggin; Kennebec; Cumberland, Sagadahoc; York. The

PM10 maintenance area for which conformity determinations

are required and which is governed by general conformity includes a

portion of Aroostock County (within city of Presque Isle). And finally,

the SO2 maintenance area for which conformity determinations

are required and which is governed by general conformity is the

municipality of Millinocket.

III. Statutory and Regulatory References

The Maine Office of Attorney General determined that this SIP

revision will be enforceable pursuant to Maine statutory law (i.e., 38

M.R.S.A. Section 585 which states ``The board may establish and may

amend standards, herein called ``emission standards,'' limiting and

regulating in a just and equitable manner the amount and type of air

contaminants which may be emitted to the ambient air within a region.

Such emission standards shall be designated to prevent air pollution

and to achieve and maintain the ambient air quality

[[Page 49610]]

standards within the region in which applicable'' and 38 M.R.S.A.

Section 585-A which states ``The Board may establish and amend

regulations to implement ambient air quality standards and emission

standards''). Finally, Section 110 of the Clean Air Act Amendments

requires each state to adopt and submit to the Administrator a plan

providing for the implementation, maintenance and enforcement of air

quality standards and control programs.

IV. EPA Action

The EPA is approving the general conformity SIP revision for the

State of Maine. The EPA has evaluated this SIP revision and has

determined that the State has fully adopted the provisions of the

Federal general conformity rules set forth at 40 CFR part 51, subpart

B. The appropriate public participation and comprehensive interagency

consultations have been undertaken during development and adoption of

this SIP revision.

The 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, the EPA is proposing to approve the SIP revision

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

effective November 24, 1997, unless, by October 23, 1997, adverse or

critical comments are received.

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

before the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will 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 November 24, 1997.

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.

V. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

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.

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

Clean Air Act 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, the

Administrator certifies 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 flexibility

analysis would constitute Federal inquiry into the economic

reasonableness of state action. The Clean Air Act forbids EPA to base

its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.

EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

C. Unfunded Mandates Act

Under sections 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. Under Section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action proposed does not

include a Federal mandate that may result in estimated costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector. This Federal action approves pre-

existing requirements under State or local law, and imposes no new

Federal requirements. Accordingly, no additional costs to State, local,

or tribal governments, or to the private sector, result from this

action.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

E. Petitions for Judicial Review

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 November 24, 1997. 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).) EPA encourages

interested parties to comment in response to the proposed rule rather

than petition for judicial review, unless the objection arises after

the comment period allowed for in the proposal.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and

recordkeeping requirements, Sulfur oxides.

Dated: September 9, 1997.

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:

[[Page 49611]]

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

Subpart U--Maine

2. Section 52.1020 is amended by adding paragraph (c)(44) to read

as follows:

Sec. 52.1020 Identification of plan.

* * * * *

(c) * * *

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

Maine Department of Environmental Protection on October 11, 1996.

(i) Incorporation by reference.

(A) Letter from the Maine Department of Environmental Protection

dated October 11, 1996 submitting a revision to the Maine State

Implementation Plan.

(B) Chapter 141 of the Maine Department of Environmental Protection

Air Regulation entitled, ``Conformity of General Federal Actions,''

effective in the State of Maine on September 28, 1996.

3. In Sec. 52.1031 Table 52.1031 is amended by adding a new entry

for state citation Chapter 141: General Conformity Rule to read as

follows:

Sec. 52.1031 EPA-approved Maine regulations.

* * * * *

Table 52.1031.--EPA-Approved Rules and Regulations

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Date

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

by State citation

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* * * * * * *

141................ Conformity of General Federal 9/11/96 September 23, 1997.... 62 FR 49611.......... (c)(44) ``Chapter 141:

Actions. Conformity of

General Federal

Actions''.

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[FR Doc. 97-25230 Filed 9-22-97; 8:45 am]

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