[Federal Register Volume 67, Number 12 (Thursday, January 17, 2002)]
[Proposed Rules]
[Pages 2390-2393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1244]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-7129-6]


Approval of Section 112(l) Authority for Hazardous Air 
Pollutants; Equivalency by Permit Provisions; National Emission 
Standards for Hazardous Air Pollutants From the Pulp and Paper 
Industry; State of Maine

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to approve a delegation request submitted 
by the State of Maine. Pursuant to section 112(l) of the Clean Air Act 
(CAA), Maine Department of Environmental Protection (ME DEP) requested 
approval to implement and enforce State permit terms and conditions 
that substitute for the National Emission Standards for Hazardous Air 
Pollutants from the Pulp and Paper Industry. EPA is proposing to grant 
ME DEP the authority to implement and enforce alternative requirements 
in the form of title V permit terms and conditions after EPA has 
approved the state's alternative requirements. This action is being 
taken under the Clean Air Act.

DATES: Written comments must be received by February 7, 2002.

ADDRESSES: Comments should be addressed to: Steven Rapp, 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.

[[Page 2391]]

    Copies of the submitted request are available for public inspection 
at EPA's Region I office during normal business hours.

FOR FURTHER INFORMATION CONTACT: Ian D. Cohen, Office of Ecosystem 
Protection, U.S. Environmental Protection Agency, EPA-New England, One 
Congress Street, Suite 1100, Boston, MA 02114-2023, Telephone: (617) 
918-1655.

SUPPLEMENTARY INFORMATION:

I. Background

    On April 15, 1998, the Environmental Protection Agency (EPA) 
promulgated the National Emission Standards for Hazardous Air 
Pollutants from the Pulp and Paper Industry (see 63 FR 18617), which 
has been codified in 40 CFR part 63, subpart S, ``National Emission 
Standards for Hazardous Air Pollutants from the Pulp and Paper 
Industry'' (Pulp and Paper MACT I). On July 16, 1999, EPA delegated its 
authority to implement and enforce 40 CFR part 63, subpart S, the Pulp 
and Paper MACT Standard, to ME DEP. Lincoln Pulp and Paper Company of 
Lincoln, Maine (Lincoln Pulp and Paper), is one of several sources in 
Maine currently subject to subpart S.
    On September 25, 2001, ME DEP requested delegation of subpart S 
under Sec. 63.94 for Lincoln Pulp and Paper. EPA received the request 
on October 5, 2001. ME DEP requested to implement and enforce approved 
alternative title V permit terms and conditions in place of the 
otherwise applicable requirements of subpart S for Lincoln Pulp and 
Paper under the process outlined in 40 CFR 63.94. ME DEP will continue 
to implement and enforce subpart S without changes for the remainder of 
sources in Maine subject to subpart S. As part of its request to 
implement and enforce approved alternative title V permit terms and 
conditions in place of the otherwise applicable federal section 112 
standards, ME DEP also requested approval of its demonstration that ME 
DEP has adequate authorities and resources to implement and enforce all 
Clean Air Act (CAA) section 112 programs and rules. The purpose of this 
demonstration is to streamline the approval process for future CAA 
section 112(l) applications.
    Under CAA section 112(l), EPA may approve state or local rules or 
programs to be implemented and enforced in place of certain otherwise 
applicable CAA section 112 federal rules, emission standards, or 
requirements. The federal regulations governing EPA's approval of state 
and local rules or programs under section 112(l) are located at 40 CFR 
part 63, subpart E (see 65 FR 55810, dated September 14, 2000). Under 
these regulations, a local air pollution control agency has the option 
to request EPA's approval to substitute alternative requirements and 
authorities that take the form of permit terms and conditions instead 
of source category-specific regulations. This option is referred to as 
the equivalency by permit (EBP) option. To receive EPA approval using 
this option, the requirements of 40 CFR 63.91 and 63.94 must be met.
    The EBP process comprises three steps. The first step (see 40 CFR 
63.94(a) and (b)) is the ``up-front approval'' of the state EBP 
program. The second step (see 40 CFR 63.94(c) and (d)) is EPA review 
and approval of the state alternative section 112 requirements in the 
form of pre-draft permit terms and conditions. The third step (see 40 
CFR 63.94(e)) is incorporation of the approved pre-draft permit terms 
and conditions into specific title V permit and the title V permit 
issuance process itself. The final approval of the state alternative 
requirements that substitute for the federal standard does not occur 
for purposes of the Act, section 112(l)(5), until the completion of 
step three.
    The purpose of step one, the ``up-front approval'' of the EBP 
program, is three fold: (1) It ensures that ME DEP meets the 
Sec. 63.91(b) criteria for up-front approval common to all approval 
options; (2) it provides a legal foundation for ME DEP to replace the 
otherwise applicable federal section 112 requirements with alternative, 
federally enforceable requirements that will be reflected in final 
title V permit terms and conditions; and (3) it delineates the specific 
sources and federal emission standards for which ME DEP will be 
accepting delegation under the EBP option.
    Under Secs. 63.91 and 63.94(b), ME's request for approval is 
required to include the identification of the sources and the source 
categories for which the state is seeking authority to implement and 
enforce alternative requirements, as well as a one time demonstration 
that the State has an approved title V operating permit program that 
permits the affected sources. EPA's review of the request for approval 
of ME DEP's EBP program for subpart S indicates that this request meets 
all the requirements necessary to qualify for approval under CAA 
section 112(l) and 40 CFR 63.91 and 63.94. EPA is proposing to approve 
ME DEP's request to implement and enforce alternative requirements in 
the form of title V permit terms and conditions for Lincoln Pulp and 
Paper for subpart S. The requirement applicable to the source and the 
``applicable requirement'' for title V purposes remains the federal 
section 112 requirement until EPA has approved the alternative permit 
terms and conditions and the final title V permit is issued.

II. Proposed Action

    EPA is proposing to approve ME DEP's request to implement and 
enforce alternative requirements in the form of title V permit terms 
and conditions for Lincoln Pulp and Paper for subpart S.
    EPA is soliciting public comments on the issues discussed in this 
proposal or on other relevant matters. These comments will be 
considered before EPA takes final action. Interested parties may 
participate in the federal rulemaking procedure by submitting written 
comments to the EPA New England Regional Office listed in the ADDRESSES 
section of this action.

III. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866, entitled ``Regulatory Planning and 
Review.'' This 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. Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
federal government and Indian tribes.''
    EPA has concluded that this proposed rule may have tribal 
implications. Lincoln Pulp and Paper is located near the Penobscot 
Nation. However, it will neither impose substantial direct compliance 
costs on tribal governments, nor preempt tribal law. Thus, the 
requirements of sections 5(b) and 5(c) of the Executive Order do not 
apply to this rule.
    Consistent with EPA policy, EPA nonetheless consulted with

[[Page 2392]]

representatives early in the process of developing this regulation to 
permit them to have meaningful and timely input into its development. 
EPA has discussed this with representatives of the Penobscot Indian 
Tribe. EPA has agreed to work with the State, the Tribe, and the 
company to ensure that whatever alternative EPA approves will have no 
discernible environmental effect on the Tribe. We are conducting 
ongoing consultation with the Penobscot Nation on this request by the 
State of Maine and have explained that while this action gives Maine 
flexibility, it does not increase its authority. This federal action 
will allow the State of Maine to implement equivalent alternative 
permit requirements to replace pre-existing requirements under federal 
law.
    In the spirit of Executive Order 13175, and consistent with EPA 
policy to promote communications between EPA and tribal governments, 
EPA specifically solicits additional comment on this proposed rule from 
tribal officials.

C. Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that 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.''
    This proposed rule does not have federalism implications. 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. This action will simply allow 
Maine to implement equivalent alternative requirements to replace a 
federal standard, and does not alter the relationship or the 
distribution of power and responsibilities established in the Clean Air 
Act. Thus, Executive Order 13132 does not apply to this proposed rule.

D. Executive Order 13211

    This rule is not subject to 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.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et seq. generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute 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 entities with jurisdiction over 
populations of less than 50,000. This proposed rule will not have a 
significant impact on a substantial number of small entities because 
approvals under 40 CFR 63.94 do not create any new requirements but 
will simply allow the state to implement and enforce permit terms in 
place of federal requirements that the EPA is already imposing. 
Therefore, because this proposed 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.

F. Unfunded Mandates

    Under section 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 
annual costs to state, local, or tribal governments in the aggregate, 
or to 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 annual costs of 
$100 million or more to either state, local, or tribal governments in 
the aggregate, or to the private sector. This federal action will allow 
Maine to implement equivalent alternative requirements to replace pre-
existing requirements under federal law, and will impose no new 
requirements. Accordingly, no additional costs to state, local, or 
tribal governments, or to the private sector, result from this action.

G. 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, does not 
apply because this action is not a rule, for purposes of 5 U.S.C. 
804(3).

H. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. This 
action does not involved technical standards. Therefore, EPA did not 
consider the use of any voluntary consensus standards.

List of Subjects in 40 CFR Part 63

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

    Authority: This action is issued under the authority of section 
112 of the Clean Air Act, as amended, 42 U.S.C. 7412.

    Dated: January 10, 2002.
Robert W. Varney,
Regional Administrator, EPA-New England.

    EPA is proposing to amend Title 40, chapter I, part 63 of the Code 
of Federal Regulations as follows:

PART 63--[AMENDED]

    1. The authority citation for part 63 continues to read as follows:

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

[[Page 2393]]

Subpart E--Approval of State Programs and Delegation of Federal 
Authorities

    2. Section 63.99 is amended by adding paragraph (a)(20) to read as 
follows:


Sec. 63.99  Delegated Federal authorities.

    (a)* * *
    (20) Maine.
    (i) [Reserved].
    (ii) Maine Department of Environmental Services (ME DEP) may 
implement and enforce alternative requirements in the form of title V 
permit terms and conditions for Lincoln Pulp and Paper, located in 
Lincoln, Maine, for subpart S-National Emission Standards for Hazardous 
Air Pollutants from the Pulp and Paper Industry. This action is 
contingent upon ME DEP including, in title V permits, terms and 
conditions that are no less stringent than the Federal standard and 
have been approved by EPA. In addition, the requirement applicable to 
the source remains the Federal section 112 requirement until EPA has 
approved the alternative permit terms and conditions and the final 
title V permit is issued.
* * * * *
[FR Doc. 02-1244 Filed 1-16-02; 8:45 am]
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