[Federal Register Volume 63, Number 154 (Tuesday, August 11, 1998)]
[Rules and Regulations]
[Pages 42726-42728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21347]


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Maine has since repealed the 1988 version of the rule and replaced it 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

[[Page 42728]]

``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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