Approval and Promulgation of Air Quality Implementation Plans; Maine; Source Surveillance Regulation

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[ME014-01-6994a; A-1-FRL-6136-3]

Approval and Promulgation of Air Quality Implementation Plans;

Maine; Source Surveillance Regulation

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 on June 30, 1994. This revision

consists of a continuous emissions monitoring (CEM) regulation. The

intended effect of this action is to approve Maine's CEM rule into the

Maine SIP. This action is being taken in accordance with the Clean Air

Act.

DATES: This direct final rule is effective on October 13, 1998 without

further notice, unless EPA receives adverse comment by September 10,

1998. If adverse comment is received, EPA will publish a timely

withdrawal of the direct final rule in the Federal Register and inform

the public that the rule will not take effect.

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

Office of Ecosystem Protection, 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; and the Bureau of Air Quality

Control, Department of Environmental Protection, 71 Hospital Street,

Augusta, ME 04333.

FOR FURTHER INFORMATION CONTACT: Anne E. Arnold, (617) 565-3166.

SUPPLEMENTARY INFORMATION: On July 13, 1994, EPA received a formal SIP

submittal from the Maine Department of Environmental Protection (DEP)

containing the State's Chapter 117 ``Source Surveillance'' regulation.

I. Summary of SIP Revision

Maine's Chapter 117 was first adopted by the State on August 9,

1988 and submitted to EPA as a SIP revision on August 22, 1988. EPA

approved this rule into the Maine SIP on March 21, 1989 (54 FR 11525).

Maine has since repealed the 1988 version of the rule and replaced it

with a new Chapter 117. This new version of Chapter 117 was submitted

to EPA as a SIP revision on June 30, 1994 and is the subject of today's

action. This regulation is briefly summarized below.

Chapter 117: Source Surveillance

This regulation requires certain air emissions sources to operate

continuous emission monitoring systems and details the performance

specifications, quality assurance procedures, and recordkeeping and

reporting requirements for such systems.

EPA's Evaluation of Maine's Submittal

EPA has evaluated Maine's Chapter 117 and has found that it is

consistent with the requirements of 40 CFR Part 51, Appendix P. Maine's

regulation and EPA's evaluation are detailed in a memorandum, dated

June 24, 1998, entitled ``Technical Support Document--Maine--Source

Surveillance Rule.'' Copies of that document are available, upon

request, from the EPA Regional Office listed in the ADDRESSES section

of this document.

One aspect of Maine's Chapter 117 which is somewhat unique is the

rule's data recovery requirements. The data recovery requirements of

the Maine regulation contain a basic requirement that ``emission

monitoring devices must record accurate and reliable data during all

source-operating time except for periods when the emission monitoring

devices are subject to established quality assurance and quality

control procedures [ (``QA/QC'') ] or to unavoidable malfunction.''

(Chapter 117, Section 5.) This basic provision is consistent with both

40 CFR Part 51, Appendix P and 40 CFR part 60, appendix F. However, the

regulation contains a limitation that prohibits the Department's

enforcement of the basic requirement when a source's emission

monitoring system records accurate and reliable data 90% of the time in

a given quarter (95% of the time for opacity monitoring). The

regulation further states that if the monitoring system does not record

such data for the minimum percentage of time, then the Department may

initiate an enforcement action for any period of down time that the

owner or operator (``licensee'') cannot establish was due to QA/QC or

unavoidable malfunctions. (See Chapter 117, Section 5.A and 5.B.)

The language in the Maine regulation and the authorizing state

legislation, Title 38 MRSA Section 589(3), is not an express exemption

from the basic data recovery requirement. If the regulation and the

authorizing legislation were intended to provide an exemption, then a

more direct statement of an exemption would have been drafted (e.g.,

``Monitoring devices must record accurate and reliable data for 90% of

the source-operating time * * * ''). Instead, the language simply

provides direction to the Department on when it may initiate

enforcement for failure to maintain operational CEMS. In this respect,

the language is more of a mandate from the legislature on how the

Department must manage its resources than a grant of immunity from all

potential enforcement.

The EPA does not interpret the language restricting when the

Department may initiate an enforcement action as applying to other

potential enforcers such as citizens and the EPA. Otherwise, the basic

underlying requirement to maintain operational CEMS at all times except

during QA/QC and unavoidable malfunctions would have no binding effect.

If this language were binding on other potential enforcers, then the

limitation would make the Maine regulation less stringent than the

requirements of Appendix P. Maine's regulation includes a note

providing fair notice that the ``requirements under federal law may be

more stringent than the requirements of Chapter 117 and Title 38 MRSA

Section 589(3).'' (Chapter 117, section 5, Note.) This note confirms

that the Department may have fewer opportunities to initiate

enforcement under its regulation than others may have under federal

law. Therefore, in incorporating by reference this rule into the SIP,

the EPA adopts a literal interpretation of the language restricting

when the Department may initiate an enforcement action as applying only

to the Department and as not restricting when other potential enforcers

may initiate enforcement action.

One other aspect of the data recovery requirements should be

clarified as part of the EPA's approval of Chapter 117 into the SIP.

The most natural reading of the affirmative defense available

[[Page 42727]]

when the licensee's monitors do not properly record data for the

minimum percentage of time in the quarter would require the licensee to

demonstrate a legitimate basis for all of the down time in the quarter.

The affirmative defense (``unless the licensee can demonstrate * * *

that the failure of the system to record accurate and reliable data was

due to'') references the basic requirement to ``record accurate and

reliable data'' without qualification rather than including a percent-

of-the-time threshold (e.g., ``record accurate and reliable data at

least 90% of source-operating time'').

Under the interpretations discussed above, if an emission

monitoring system recorded accurate and reliable data for 91% of the

operating time in the quarter, then the Department could not initiate

an enforcement action under the regulation no matter the cause of the

down time. If a monitoring system provided accurate and reliable data

for 85% of the operating time in a quarter, then the Department could

proceed with an enforcement action because the monitors would not have

been properly recording data for the minimum percentage of time (90% or

95% of the quarter). In the latter case, Maine may enforce the data

recovery requirements unless the licensee can show that unavoidable

malfunctions and QA/QC accounted for all of the time the system failed

to properly record data. However, in all these cases, the EPA or a

private citizen could initiate an enforcement action against the

licensee for violation of the basic requirement to record accurate and

reliable data during all operating time, subject to the licensee's

affirmative defenses.

EPA seeks comment on whether it has correctly interpreted the

continuous monitoring data recovery provisions of the Maine rule.

Comments disagreeing with EPA's understanding of these provisions would

be relevant and adverse to the basis of EPA's approval of these

provisions into the SIP for Maine.

II. Final Action

EPA is approving Maine's Chapter 117 ``Source Surveillance''

regulation as a revision to the Maine SIP.

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 relevant adverse comments be filed. This rule will be effective

on October 13, 1998 without further notice, unless EPA receives

relevant adverse comment by September 10, 1998.

If relevant adverse comment is received, EPA will publish a timely

withdrawal of the direct final rule in the Federal Register and inform

the public that the rule did not take effect. 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

October 13, 1998.

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.

III. Administrative Requirements

A. Executive Order 12866

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

regulatory action from Executive Order 12866 review.

The final rule is not subject to Executive Order 13045, entitled

``Protection of Children from Environmental Health Risks and Safety

Risks,'' because it is not an ``economically significant'' action under

Executive Order 12866.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because 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

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the

Clean Air Act, preparation of 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

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 promulgated 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

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

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

Because small governments will not be significantly or uniquely

impacted by this rule, the Agency is not required to develop a plan

with regard to small governments.

D. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. EPA will submit 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 United States prior

to publication of the rule in the Federal Register. This rule is not a

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``major rule'' as defined by 5 U.S.C. 804(2).

E. Petition 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 October 13, 1998. 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, Incorporation by

reference, Intergovernmental relations, 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: July 29, 1998.

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 et seq.

Subpart U--Maine

2. Section 52.1020 is amended by adding paragraph (c)(39) to read

as follows:

Sec. 52.1020 Identification of plan.

* * * * * *

(c) * * *

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

Maine Department of Environmental Protection on June 30, 1994.

(i) Incorporation by reference.

(A) Letter from the Maine Department of Environmental Protection

dated June 30, 1994 submitting a revision to the Maine State

Implementation Plan.

(B) Chapter 117 of the Maine Department of Environmental Protection

Regulations, ``Source Surveillance,'' effective in the State of Maine

on May 9, 1994.

(ii) Additional materials.

(A) Nonregulatory portions of the submittal.

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

following existing state citation ``117'' to read as follows:

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 52.1020

State EPA citation

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* * * * * *

*

117................... Source Surveillance..... 4/27/94 8-11-98 [Insert FR citation (c)(39)

from published date].

* * * * * *

*

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[FR Doc. 98-21347 Filed 8-10-98; 8:45 am]

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