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

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: February 14, 1996 (Volume 61, Number 31)]
[Rules and Regulations]
[Page 5690-5694]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

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.

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

[[Page 5691]]

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).

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.

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

[[Page 5692]]

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 (NO<INF>X) unless the Administrator makes certain
determinations related to the benefits or contribution of NO<INF>X
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 NO<INF>X satisfies the
requirements applicable to any major source of VOC, unless a special
NO<INF>X 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.

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.

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 NO<INF>X.
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 NO<INF>X 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 NO<INF>X in NO<INF>X 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

[[Page 5693]]

``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 SIPapproval
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]

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

* * * *

(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.
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:

[[Page 5694]]

Sec. 52.1031 EPA-approved Maine regulations.

* * * *

Table 52.1031--EPA-Approved Rules and Regulations
Date Date
State citation Title/subject adopted by approved by Federal Register citation 52.1020
State EPA
* * * * * * *
published date]. NSR and other CAAA
requirements.

* * * * * * *
published date]. NSR requirements.

* * * * * * *
published date]. NSR and other CAAA
requirements.

* * * * * * *

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