[Federal Register Volume 70, Number 46 (Thursday, March 10, 2005)]
[Rules and Regulations]
[Pages 11879-11882]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4709]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R01-OAR-2005-ME-0001; A-1-FRL-7881-2]


Approval and Promulgation of Air Quality Implementation Plans; 
Maine; NOX Control Program

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. This revision establishes requirements 
to reduce emissions of nitrogen oxides from large stationary sources. 
The intended effect of this action is to approve these requirements 
into the Maine SIP. EPA is taking this action in accordance with the 
Clean Air Act (CAA).

DATES: This direct final rule will be effective May 9, 2005, unless EPA 
receives adverse comments by April 11, 2005. If EPA receives adverse 
comments, the Agency will publish a timely withdrawal of the direct 
final rule in the Federal Register informing the public that the rule 
will not take effect.

ADDRESSES: When submitting your comments, include the Regional Material 
in EDocket (RME) ID Number R01-OAR-2005-ME-0001 by one of the following 
methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    2. Agency Web site: http://docket.epa.gov/rmepub/ Regional Material 
in EDocket (RME), EPA's electronic public docket and comment system, is 
EPA's preferred method for receiving comments. Once in the system, 
select ``quick search,'' then key in the appropriate RME Docket 
identification number. Follow the on-line instructions for submitting 
comments.
    3. E-mail: [email protected].
    4. Fax: (617) 918-0661.
    5. Mail: ``RME ID Number R01-OAR-2005-ME-0001'' David Conroy, U.S. 
Environmental Protection Agency, EPA New England Regional Office, One 
Congress Street, Suite 1100 (mail code CAQ), Boston, MA 02114-2023.
    6. Hand Delivery or Courier. Deliver your comments to: David 
Conroy, Unit Manager, Air Quality Planning, Office of Ecosystem 
Protection, U.S. Environmental Protection Agency, EPA New England 
Regional Office, One Congress Street, 11th floor, (CAQ), Boston, MA 
02114-2023. Such deliveries are only accepted during the Regional 
Office's normal hours of operation. The Regional Office's official 
hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., 
excluding Federal holidays.
    Instructions: Direct your comments to Regional Material in EDocket 
(RME) ID Number R01-OAR-2005-ME-0001. EPA's policy is that all comments 
received will be included in the public docket without change and may 
be made available online at http://docket.epa.gov/rmepub/, including 
any personal information provided, unless the comment includes 
information claimed to be Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. Do not 
submit information that you consider to be CBI or otherwise protected 
through Regional Material in EDocket (RME), regulations.gov, or e-mail. 
The EPA RME Web site and the Federal regulations.gov Web site are 
``anonymous access'' systems, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through RME or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your

[[Page 11880]]

name and other contact information in the body of your comment and with 
any disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters or any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
Regional Material in EDocket (RME) index at http://docket.epa.gov/rmepub/. Although listed in the index, some information is not publicly 
available, i.e., CBI or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically in RME or in hard copy at the Office of 
Ecosystem Protection, U.S. Environmental Protection Agency, EPA New 
England Regional Office, One Congress Street, Suite 1100, Boston, MA. 
EPA requests that if at all possible, you contact the contact listed in 
the FOR FURTHER INFORMATION CONTACT section to schedule your 
inspection. The Regional Office's official hours of business are Monday 
through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Christine Sansevero, Air Quality 
Planning Unit, U.S. Environmental Protection Agency, EPA New England 
Regional Office, One Congress Street, Suite 1100 (CAQ), Boston, MA 
02114-2023, (617) 918-1699, [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. How Can I Get Copies of This Document and Other Related Information?

    In addition to the publicly available docket materials available 
for inspection electronically in Regional Material in EDocket, and the 
hard copy available at the Regional Office, which are identified in the 
ADDRESSES section above, copies of the state submittal and EPA's 
technical support document are also available for public inspection 
during normal business hours, by appointment at the Bureau of Air 
Quality Control, Department of Environmental Protection, First Floor of 
the Tyson Building, Augusta Mental Health Institute Complex, Augusta, 
ME 04333-0017.

II. Rulemaking Information

    This section is organized as follows:

    A. What Action is EPA Taking?
    B. What are the Requirements of Maine's New Regulation?
    C. Why is EPA Approving Maine's Regulation?
    D. What is the Process for EPA To Approve This SIP Revision?

A. What Action is EPA Taking?

    EPA is approving Maine's Chapter 145, ``NOX Control 
Program'' and incorporating this regulation into the Maine SIP.

B. What are the Requirements of Maine's New Regulation?

    Chapter 145 sets year-round NOX emission limits for all 
electric generating facilities and industrial sources with a heat input 
of greater than 250 million British Thermal Units (BTU) per hour 
located in York, Cumberland, Sagadahoc, Androscoggin, Kennebec, 
Lincoln, and Knox counties. The rule establishes control requirements 
for electric generating units (EGUs) and industrial boilers, through 
both ``interim'' and ``final'' emission limits (in pounds per million 
BTU) as indicated in Table 1 below. The limits are to be met on a 90-
day rolling average basis. The rule includes the appropriate testing 
and recordkeeping requirements to ensure compliance with the specified 
emission limits. The rule also includes provisions for averaging 
emissions between units in certain circumstances as well as appropriate 
monitoring requirements.

                    Table 1.--Interim and Final Emission Limits for Large Stationary Sources
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                                     Interim limits  June 15, 2003 thru
         Affected source                      December 30, 2004               Final limits  December 30, 2004
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Fossil fuel fired EGU with heat    0.27 lbs/mmBTU........................  0.22 lbs/mmBTU.
 input less than 750 mmBTU/hr.
Fossil fuel fired EGU with heat    0.19 lbs/mmBTU........................  0.15 lbs/mmBTU.
 input greater than or equal to
 750 mmBTU/hr.
Fossil fuel fired heat             0.20 lbs/mmBTU........................  0.20 lbs/mmBTU.
 exchangers, primary boilers and
 resource recovery units with
 heat input greater than 250
 mmBTU/hr.
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    While an affected source must comply with the interim limits, the 
regulation provides for alternative emission limitations for sources 
that cannot meet the final emission limits using NOX control 
technology approved by the Maine Department of Environmental Protection 
Commissioner or Maine Board of Environmental Protection under Chapter 
145. If an affected source fails to meet the final emission limitation 
after installing the approved NOX control technology, they 
can apply to the Board to establish an alternative emission limitation 
based on the actual performance of the NOX control 
technology. Affected sources must apply to the Board for an alternative 
emission limit by January 1, 2005. The Board will process any 
application for alternative emission limits as a license amendment.
    The authority to establish alternative emission limits is the 
functional equivalent of a director's discretion provision. Director's 
discretion provisions are not acceptable for inclusion in SIPs if the 
state is relying on the provision to satisfy a Clean Air Act 
requirement, or to receive credit under its SIP for enforceable 
emission reductions. Chapter 145, however, is an additional control 
measure undertaken by Maine that goes beyond what is minimally required 
by the Clean Air Act. This rule is not meant to implement a Reasonably 
Available Control Technology requirement and Maine is not covered by 
the NOX SIP call. Therefore, EPA is approving this rule as a 
SIP strengthening measure despite the provision allowing the Board to 
set alternative limits. Fortunately, the rule limits the time frame for 
requesting an alternative limit; after January 1, 2005 no source may 
apply for such a limit. As a result, we now know the universe of 
emissions units that may be receiving an alternative limit. Imposing a 
limit on the time frame to request an alternate limit has the effect of 
eliminating the operation of the director's discretion provision after 
passage of this deadline.
    Maine DEP has notified EPA that, on December 28, 2004, one such 
affected facility, FPL Energy, submitted an application for alternative 
emission

[[Page 11881]]

limits for units 3 and 4 of their Wyman station in Yarmouth, Maine. 
Once the Board has made a final determination of the alternative limits 
for units 3 and 4 at Wyman Station, EPA and the public will know what 
emissions limits are in effect under the rule for these units. 
Moreover, Maine DEP has committed to submit any alternative emission 
limits to EPA as a single-source SIP revision \1\. Once the state 
establishes those limits in an operating license and submits them to 
EPA for approval as a revision to the SIP, EPA will be able to assign 
SIP credit for the final emission limits for these units, and there 
will be no further opportunity for the state to change the limits under 
the rule unless it is done as a revision to the SIP.
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    \1\ See response to comment number 108 on page 95 of DEP's 
Supplemental Basis Statement for Chapter 145.
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C. Why is EPA Approving Maine's Regulation?

    EPA has evaluated Maine's Chapter 145 and has determined that this 
regulation strengthens the existing SIP requirements for large 
stationary sources. The specific requirements of the regulation and 
EPA's evaluation of these requirements are detailed in a memorandum 
dated January 24, 2005, entitled ``Technical Support Document--Maine--
NOX Control Program Regulation'' (TSD). The TSD and Maine's 
Chapter 145 are available in the docket supporting this action.

D. What is the Process for EPA To Approve This SIP Revision?

    The EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
adverse comments be filed. This action will be effective May 9, 2005, 
without further notice unless the EPA receives adverse comments by 
April 11, 2005.
    If the 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. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this rule will be effective on May 9, 2005, and no 
further action will be taken on the proposed rule.

III. Final Action

    EPA is approving Maine's Chapter 145, ``NOX Control 
Program'' and incorporating this regulation into the Maine SIP.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    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 (65 
FR 67249, November 9, 2000). This action also does not have federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999), because it merely approves a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This 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), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 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 SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission 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. 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. 
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 May 9, 2005. 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 52

    Environmental protection, Air pollution control, Incorporation by

[[Page 11882]]

reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements.

    Dated: February 18, 2005.
Robert W. Varney,
Regional Administrator, EPA New England.

    Part 52 of chapter I, title 40 of the Code of Federal Regulations 
is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart U--Maine

0
2. Section 52.1020 is amended by adding paragraph (c)(56) to read as 
follows:


Sec.  52.1020  Identification of plan.

* * * * *
    (c) * * *
    (56) Revisions to the State Implementation Plan submitted by the 
Maine Department of Environmental Protection on February 12, 2004.
    (i) Incorporation by reference.
    (A) Chapter 145 of the Maine Department of Environmental Protection 
Regulations, ``NOX Control Program,'' effective in the State 
of Maine on July 22, 2001.
    (ii) Additional materials.
    (A) Nonregulatory portions of the submittal.

0
3. In Sec.  52.1031, Table 52.1031 is amended by adding a new state 
citation, 145, in numerical order 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    approved   Federal Register    52.1020
                                      by State    by EPA        citation
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                                                  * * * * * * *
145...........  NOX Control Program    6/21/01    4/10/05  [Insert FR          (c)(56).
                                                            citation from
                                                            published date].
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Note.--1. The regulations are effective statewide unless stated otherwise in comments section.

[FR Doc. 05-4709 Filed 3-9-05; 8:45 am]
BILLING CODE 6560-50-P