[Federal Register Volume 66, Number 202 (Thursday, October 18, 2001)]
[Rules and Regulations]
[Pages 52874-52877]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26099]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[ME-063-7012a; A-1-FRL-7085-5]


Clean Air Act Final Approval of Operating Permits Program; State 
of Maine

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking final action to fully approve the Operating 
Permits Program of the State of Maine (program). Maine submitted its 
program for the purpose of complying with Clean Air Act (the Act) 
requirements for a state to develop a program to issue operating 
permits to all major stationary and certain other sources. EPA granted 
source category-limited interim approval to Maine's operating permit 
program on February 21, 1997. On September 28, 2001, EPA received 
Maine's revisions to its program that address the issues described in 
EPA's interim approval.

DATES: This direct final rule is effective on December 17, 2001 without 
further notice, unless EPA receives adverse comment by November 19, 
2001. 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 Steve Rapp, Unit Manager, Air 
Permits Program Unit, Office of Ecosystem Protection (mail code CAP), 
U.S. Environmental Protection Agency, EPA--New England, One Congress 
Street, Suite 1100, Boston, MA 02114-2023. Copies of the state 
submittal and other supporting documentation 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, EPA--New England, One Congress Street, 11th floor, 
Boston, MA Region I.

FOR FURTHER INFORMATION CONTACT: Donald Dahl, (617) 918-1657.

SUPPLEMENTARY INFORMATION:

I. Why Was Maine Required To Develop an Operating Permit Program?

    Title V of the Clean Air Act (the Act), as amended (42 U.S.C. 7401 
and 7661 et seq.), requires all states to develop an operating permit 
program and submit it to EPA for approval. EPA has promulgated rules 
that define the minimum elements of an approvable

[[Page 52875]]

state operating permit program and the corresponding standards and 
procedures by which EPA will approve, oversee, and, if necessary, 
withdraw approval of state operating permit programs. See 57 FR 32250 
(July 21, 1992). These rules are codified at 40 Code of Federal 
Regulations (CFR) part 70.
    Title V directs states to develop programs for issuing operating 
permits to all major stationary sources and to certain other sources. 
EPA's program review occurs pursuant to section 502 of the Act (42 
U.S.C. 7661a) and the Part 70 regulations, which together outline 
criteria for approval or disapproval. Where a program substantially, 
but not fully, meets the requirements of Part 70, EPA may grant the 
program either partial or interim approval. See 40 CFR 70.4(d). EPA 
granted the State of Maine final interim approval of its program on 
February 21, 1997 (see 62 FR 7978), which became effective on March 24, 
1997.

II. What Did Maine Submit To Meet the Title V Requirements?

    Maine submitted a Title V operating permit program on October 23, 
1995. In addition to regulations (Chapter 140 of the Department of 
Environmental Protection Regulations), the program submittal included a 
legal opinion from the Attorney General of Maine stating that the laws 
of the State provide adequate legal authority to carry out all aspects 
of the program, and a description of how the State would implement the 
program. The submittal additionally contained evidence of proper 
adoption of the program regulations, application and permit forms, and 
a permit fee demonstration. This program, including the operating 
permit regulations, substantially met the requirements of part 70.

III. What Was EPA's Action on Maine's 1995 Submittal?

    EPA deemed the program administratively complete in a letter to the 
state dated December 29, 1995. On September 19, 1996, EPA proposed to 
grant interim approval to Maine's submittal. After responding to 
comments, EPA granted interim approval to Maine's submittal on February 
21, 1997. In the notice granting interim approval, EPA stated that 
there were several areas of Maine's program regulations that would need 
to be amended in order for EPA to grant full approval of the state's 
program. EPA has been working closely with the state and has determined 
that the state has made all necessary rule changes for full approval. 
The following section contains details regarding the areas of Maine's 
regulations which the state changed to address EPA's interim approval 
issues.

IV. What Were EPA's Interim Approval Issues and Where Has Maine 
Amended its Regulation To Address the Interim Approval Issues?

    1. Forty CFR 70.4(b)(12)(i) requires states to allow for facilities 
to make changes as required by Section 502(b)(10) of the Act, ``Section 
502(b)(10) changes'' as defined in Part 70, with just a seven day 
notice. Chapter 140, section 8 and the relevant definitions in Chapter 
100, sections 39 and 113 of the State's rule, adequately addresses the 
relevant sections of 40 CFR 70.4(b)(12) governing ``Section 502(b)(10) 
changes.''
    2. Forty CFR 70.7(e)(2)(iv) requires the state to process minor 
permit modifications within 90 days of the state's receipt of the 
application. Chapter 140, section 9.B.2. requires the state to process 
``Part 70 Minor Change'' within 90 days.
    3. Forty CFR 70.7(e)(2)(iii) and 70.7(e)(2)(iv) require the state 
to notify EPA and affected states when a source applies for a minor 
permit modification. States are also required to give EPA 45 days to 
review any minor permit modification. Previously, Maine allowed sources 
to revise their permits though a procedure called ``Part 70 Minor 
Revision'' contained in Chapter 140, section 7, without EPA or affected 
state review of the modification. In its new rule, Maine has limited 
these ``Part 70 Minor Revision'' provisions so that they apply only to 
``state-only requirements.'' Chapter 140, section 7(A). Therefore, 
these minor revision procedures will not affect any permit terms used 
to implement applicable requirements under the Act.
    4. Part 70 does not provide a state the option to write a permit 
condition that would allow a source, under limited circumstances, to 
continue to emit up to the previous licensed level for up to 24 months 
after the license is amended. In Chapter 140, Maine amended section 
5(B)(6)(j) to limit this provision to ``state requirements.'' EPA 
understands that Maine's intent is to limit the availability of these 
extended compliance schedules to those permit terms that are required 
only under state law. Therefore, these extended compliance schedules 
will not be available for any applicable requirement in the permit 
required under the Act.
    5. Part 70 allows states to develop lists of activities that are 
considered insignificant and can be exempted from permits and permit 
applications, provided such activities are not needed to determine the 
applicability of or to impose an applicable requirement or evaluate the 
annual permit fee. See 40 CFR 70.5(c). Chapter 140, appendix B, 
contains the list of activities in Maine that were exempted from the 
program. This Appendix allowed an activity that emitted up to 4 tons of 
hazardous air pollutants (HAPs) to be listed as insignificant. EPA 
disagreed that such an activity could be considered insignificant. 
Therefore, Maine has amended Appendix B by lowering the HAPs threshold 
to one ton per year of total HAPs for any emission unit or activity. 
Chapter 140, appendix B, section B(1)(c). Maine also clarified in 
appendix B that exempt activities cannot emit more than the state's own 
thresholds for HAPs, which can be significantly less than one ton per 
year. Chapter 140, appendix B, sections B(1)(d) and C.
    On February 21, 1997 (62 FR 7978), EPA proposed to add a sixth 
interim approval condition requiring the state to remove six activities 
from its list of insignificant activities. Even though EPA never 
finalized this issue as an interim approval condition, Maine has either 
removed or clarified the activities on the list of insignificant 
activities to address EPA's concerns. Specifically, Maine has removed 
the activities formerly listed as paper forming (1995 version of 
chapter 140, appendix B, section A(117)); vacuum system exhaust (1995 
version of chapter 140, appendix B, section A(118)); and stock cleaning 
and pressurized pulp washing (1995 version of chapter 140, appendix B, 
section A(121)). Maine also limited the exemption for the following 
activities to include only emission units not subject to the pulp and 
paper MACT standards: Ssewer manholes, junction boxes, sumps, and lift 
stations associated with wastewater treatment (2001 version of chapter 
140, appendix B, section A(97)); and broke beaters, repulpers, pulp and 
repulping tanks, stock chests and bulk pulp handling (2001 version of 
chapter 140, appendix B, section A(84)). The activity described 
formerly as ``liquor clarifier and storage tanks and associated 
pumping, piping, and handling'' (1995 version of chapter 140, appendix 
B, section A(114)) has been limited to clarifiers, storage tanks and 
associated pumping, piping, and handling for white liquor (2001 version 
of chapter 140, appendix B, section (88)). White liquor handling is 
currently unregulated by the pulp and paper MACT standard. EPA has 
determined that the state has either eliminated or appropriately 
limited the exemptions

[[Page 52876]]

we proposed to list as interim approval issues.

V. What Action Is EPA Taking Today?

    EPA is taking final action to fully approve the State's operating 
permit program because the State of Maine's program now fulfills the 
requirements of part 70. EPA is publishing this action without prior 
proposal because the Agency views this as a noncontroversial amendment 
and anticipates no adverse comments. In the proposed rules section of 
this Federal Register publication, however, EPA is publishing a 
separate document that will serve as the proposal to grant full 
approval should relevant adverse comments be filed. This action will be 
effective December 17, 2001 unless the Agency receives relevant adverse 
comments by November 19, 2001.
    If EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. EPA will address all public comments it receives in a 
subsequent final rule based on the proposed rule. EPA will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If EPA receives no such comments, the public 
is advised that this action will be effective on December 17, 2001.

Administrative Requirements

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this proposed action is not a ``significant 
regulatory action'' and therefore is not subject to review by the 
Office of Management and Budget. Under the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.) the Administrator certifies that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities because it merely approves state law as 
meeting federal requirements and imposes no additional requirements 
beyond those imposed by state law. This rule does not contain any 
unfunded mandates and does not significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4) because it proposes to approve pre-existing 
requirements under state law and does not impose any additional 
enforceable duties beyond that required by state law. This rule also 
does not have tribal implications because it will not have a 
substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175, 
``Consultation and Coordination with Indian Tribal Governments'' (65 FR 
67249, November 9, 2000). This rule also does not have Federalism 
implications because it will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132, 
``Federalism'' (64 FR 43255, August 10, 1999). The rule merely proposes 
to approve existing requirements under state law, and does not alter 
the relationship or the distribution of power and responsibilities 
between the State and the Federal government established in the Clean 
Air Act. This proposed rule also is not subject to Executive Order 
13045, ``Protection of Children from Environmental Health Risks and 
Safety Risks'' (62 FR 19885, April 23, 1997) or Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001), because it 
is not a significant regulatory action under Executive Order 12866. 
This action will not impose any collection of information subject to 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
other than those previously approved and assigned OMB control number 
2060-0243. For additional information concerning these requirements, 
see 40 CFR part 70. An agency may not conduct or sponsor, and a person 
is not required to respond to, a collection of information unless it 
displays a current valid OMB control number.
    In reviewing State operating permit programs submitted pursuant to 
Title V of the Clean Air Act, EPA will approve State programs provided 
that they meet the requirements of the Clean Air Act and EPA's 
regulations codified at 40 CFR part 70. In this context, in the absence 
of a prior existing requirement for the State to use voluntary 
consensus standards (VCS), EPA has no authority to disapprove a State 
operating permit program for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews an operating 
permit program, to use VCS in place of a State program that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
    The Congressional Review Act, 5 U.S.C. section 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. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2).
    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 December 17, 2001. Interested 
parties should 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. 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 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

    Dated: October 6, 2001.
Robert W. Varney,
Regional Administrator, EPA New England.

    Part 70, title 40 of the Code of Federal Regulations is amended as 
follows:

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.

    2. Appendix A to part 70 is amended by revising the entry for Maine 
to read as follows:

[[Page 52877]]

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

Maine

    (a) Department of Environmental Protection: submitted on October 
23, 1995; source-category limited interim approval effective on 
March 24, 1997; full approval effective December 17, 2001.
    (b) [Reserved]
* * * * *
[FR Doc. 01-26099 Filed 10-17-01; 8:45 am]
BILLING CODE 6560-50-P