[Federal Register Volume 71, Number 23 (Friday, February 3, 2006)]
[Rules and Regulations]
[Pages 5791-5794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-984]



[[Page 5791]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2005-ME-0007; A-1-FRL-8027-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Maine; Nitrogen Oxides Exemption Request for Northern Maine

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a request for an exemption from the 
requirements for the control of nitrogen oxide (NOX) 
emissions contained in section 182(f) of the Clean Air Act (CAA or Act) 
for northern Maine (specifically Aroostook, Franklin, Oxford, 
Penobscot, Piscataquis, Somerset, Washington, and portions of Hancock 
and Waldo Counties). This exemption request, submitted by the State of 
Maine, is based on a demonstration that NOX emissions in the 
exemption area are not impacting Maine's ozone nonattainment areas or 
other ozone nonattainment areas in the Ozone Transport Region (OTR) 
during times when elevated ozone levels are monitored in those areas. 
As such, additional reductions in NOX emissions from this 
area beyond what the state regulations already provide for are not 
necessary for future attainment in any of Maine's ozone nonattainment 
areas or any other ozone nonattainment area in the OTR. Thus, as 
provided for in section 182(f)(2), additional NOX reductions 
in these areas constitute excess reductions, and EPA will waive them.

DATES: Effective Date: This rule will become effective on March 6, 
2006.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R01-OAR-2004-ME-0007. All documents in the 
docket are listed on the http://www.regulations.gov web site. 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 
through http://www.regulations.gov 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 to 4:30 excluding legal holidays.
    Copies of the documents relevant to this action 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.

FOR FURTHER INFORMATION CONTACT: Richard P. Burkhart, 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. Phone: 617-918-1664, Fax: (617) 
918-0664, E-mail: [email protected].

SUPPLEMENTARY INFORMATION: On August 24 , 2005 (70 FR 49526), EPA 
published a Notice of Proposed Rulemaking (NPR) for the State of Maine. 
The NPR proposed approval of a request for an exemption from the 
requirements for NOX control contained in section 182(f) of 
the Clean Air Act for northern Maine. Specifically the area includes 
Aroostook, Franklin, Oxford, Penobscot, Piscataquis, Somerset, 
Washington, and portions of Hancock and Waldo Counties. The portions of 
Waldo and Hancock Counties included are those that are designated 
unclassifiable/attainment for the 8-hour ozone standard. In Waldo 
County, this includes only the following towns: Belfast, Belmont, 
Brooks, Burnham, Frankfort, Freedom, Jackson, Knox, Liberty, 
Lincolnville, Monroe, Montville, Morrill, Northport, Palermo, Prospect, 
Searsmont, Searsport, Stockton Springs, Swanville, Thorndike, Troy, 
Unity, Waldo, and Winterport. In Hancock County, this includes only the 
following towns and townships: Amherst, Aurora, Bucksport, Castine, 
Dedham, Eastbrook, Ellsworth, Franklin, Great Pond, Mariaville, Orland, 
Osborn, Otis, Penobscot, Verona, Waltham, Oqiton Township (T4 ND), T3 
ND, T39 MD, T40 MD, T41 MD, T32 MD, T34 MD, T35 MD, T28 MD, T22 MD, T16 
MD, T8 SD, T9 SD, T10 SD, and T7 SD. The Maine Department of 
Environmental Protection (DEP) submitted the request on March 24, 2005, 
with supplemental submittals on April 19, 2005 and June 28, 2005.
    EPA received two sets of comments on the August 24 , 2005 Notice of 
Proposed Rulemaking. One comment was from McCain Foods USA, Inc. in 
Easton, Maine, which supported Maine DEP's NOX exemption 
request for northern Maine. The other comments were from the Penobscot 
Indian Nation, which had concerns about the NOX exemption 
request. EPA offers the following in response to the adverse comments 
received. Other information and the rationale for EPA's action are 
explained in the NPR and technical support document and will not be 
restated here.

Response to Comments

    Comment 1. The commenter raised concerns about the lack of tribal 
consultation with EPA on this rulemaking.
    Response 1: EPA took appropriate steps to provide Maine tribes with 
the opportunity to consult with EPA concerning the proposed rulemaking. 
Prior to signature of the Notice of Proposed Rulemaking, EPA sent an e-
mail to all of the tribes in Maine summarizing Maine DEP's 
NOX exemption request and EPA's forthcoming Notice of 
Proposed Rulemaking. In the message, EPA invited the tribes to contact 
us if they had any questions on the forthcoming proposed rulemaking. 
EPA also invited the tribes to submit any comments they had on the 
proposed action, and the Penobscot Nation did submit comments. In 
addition to the responses to the Penobscot Nation's comments presented 
in this notice, EPA held a conference call with representatives of the 
Nation and the Passamaquoddy Tribe on November 2, 2005 to explain to 
the tribes the Agency's reasons for approving this NOX 
waiver. See memorandum to the docket for this action dated November 3, 
2005 describing the call.
    Comment 2. The commenter raised concerns, that because Maine is not 
included in the Clean Air Interstate Rule (CAIR), there needs to be a 
mechanism to reduce NOX emissions in Maine. The commenter 
acknowledged that NOX emissions in the exemption area are 
not the only reason for increased ozone levels in Maine, but appears to 
believe that reducing these emissions ``would influence the development 
of ozone in some areas.'' The commenter asked for an explanation of why 
northern Maine NOX sources should be exempt from reasonably 
available control technology (RACT) controls.
    Response 2: EPA acknowledges that Maine is not required to adopt 
additional NOX controls pursuant to EPA's CAIR rule. The 
proposed rulemaking notice for Maine DEP's NOX exemption 
request explains that EPA

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ozone modeling performed to support the CAIR rule demonstrates that 
Maine's NOX emissions are not contributing significantly to 
future ozone nonattainment anywhere in the eastern United States. Thus, 
EPA is not requiring the State of Maine to adopt further NOX 
controls to help mitigate interstate ozone transport. This finding adds 
support to Maine DEP's NOX exemption request.
    In addition, as explained fully in the August 24, 2005 Notice of 
Proposed Rulemaking and the technical support document, EPA agrees with 
Maine DEP's demonstration that NOX emissions in the 
exemption area are not impacting Maine's nonattainment areas or other 
nonattainment areas in the Ozone Transport Region during times when 
elevated ozone levels are monitored in those areas. The commenter does 
not offer any scientific evidence that disputes this assertion. As 
such, EPA sees no basis for changing our conclusion that additional 
reductions of NOX emissions from the waiver area beyond what 
the state regulations already provide for would not contribute to and 
would not be necessary for future attainment in any of Maine's ozone 
nonattainment areas or other ozone nonattainment areas in the OTR. In 
acting on the NOX waiver request for northern Maine under 
the one-hour standard the Agency adapted our guidance to address the 
circumstances of this attainment/unclassifiable area in the extreme 
northeast corner of the OTR, and EPA's approach here is consistent with 
that taken in approving the one-hour NOX waiver. 60 FR 66748 
(Dec. 26, 1995).
    Moreover, based on preliminary 2003-2005 ozone air quality data, 
each of Maine's ozone nonattainment areas now have air quality better 
than the 8-hour ozone standard. We believe that it is likely that once 
the 2005 data have been quality assured and quality controlled, 
attainment with the 8-hour ozone standard will be shown throughout the 
State of Maine. As this improvement in air quality occurred without 
additional NOX reductions resulting from the installation of 
RACT in the northern Maine waiver area, it supports the conclusion that 
additional reductions in NOX emissions from the waiver area 
beyond what the state regulations already provide for are not necessary 
for future attainment in any of Maine's ozone nonattainment areas.
    Comment 3. The commenter had concerns with the EPA statement that 
this NOX exemption, if granted, will not have tribal 
implications.
    Response 3: EPA is required to review new rules for tribal 
implications. In the NPR, EPA stated that ``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 (59 FR 22951, November 9, 
2000).'' This statement was based on our conclusion that the action of 
approving a NOX exemption under the Clean Air Act for 
northern Maine will not result in the imposition of any new CAA 
requirements on tribes or impact any existing sources of air pollution 
on tribal lands. Furthermore, EPA agrees with DEP's analysis that shows 
NOX emissions in the waiver area do not contribute to the 
elevated ozone levels in Maine. Therefore, EPA concluded that this 
action would not have a substantial effect on air quality in tribal 
lands. Again, EPA has not seen any evidence that would cause the Agency 
to change this conclusion.
    Final Action: EPA is approving a request for an exemption from the 
requirements contained in section 182(f) of the Clean Air Act. This 
approval exempts major sources of nitrogen oxides in Aroostook, 
Franklin, Oxford, Penobscot, Piscataquis, Somerset, Washington, and 
portions of Hancock and Waldo Counties from (1) the requirements to 
implement controls meeting reasonably available control technology 
under the Clean Air Act, and (2) nonattainment area new source review 
(NSR) for new sources and modifications. If EPA determines based on 
future air quality analyses that NOX controls in these areas 
are necessary, EPA may initiate rulemaking to revoke this 
NOX exemption.

I. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993 we must 
determine whether a regulatory action is ``significant'' and, 
therefore, subject to review by the Office of Management and Budget 
(OMB) and the requirements of the Executive Order. The Executive Order 
defines ``significant regulatory action'' as one that is likely to 
result in a rule that may: (1) Have an annual effect on the economy of 
$100 million or more or adversely affect in a material way the economy, 
a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities; (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs, or the rights and obligations of recipients 
thereof; or (4) raise novel or legal or policy issues arising out of 
legal mandates, the President's priorities, or the principles set forth 
in the Executive Order.
    OMB has exempted this regulatory action from Executive Order 12866 
review.

B. Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must 
approve all ``collections of information'' by EPA. The Act defines 
``collection of information'' as a requirement for ``answers to * * * 
identical reporting or recordkeeping requirements imposed on ten or 
more persons * * *'' 44 U.S.C. 3502(3)(A). This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995.
    ``Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.''

C. 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.

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    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This final 
rule will not impose any requirements on small entities. This waiver 
approval under section 182(f) of the Clean Air Act does not create any 
requirements on small entities but simply approves a State's request 
for an exemption from Federal requirements.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal Agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under sections 202 of the Unfunded 
Mandates Reform Act of 1995, signed into law on March 22, 1995, EPA 
must prepare a written statement, including a cost-benefit analysis, 
for propose and final rules with ``Federal mandates'' 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. Before 
promulgating an EPA rule for which a written statement is needed, 
section 205 of the UMRA generally requires EPA to identify and consider 
a reasonable number of regulatory alternatives and adopt a least 
costly, most cost effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an Alternative other than the least 
costly, most cost effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have a meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    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 a 
waiver request and imposes no new requirements. Therefore, today's rule 
is not subject to the requirements of sections 202 and 205 of the UMRA. 
Accordingly, no additional costs to State, local, or tribal 
governments, or to the private sector, result from this action. 
Therefore, EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect the small 
governments.

E. Executive Order 13132, Federalism

    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 rule does not have federalism implications. This rule 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, because it merely approves a 
state request for a waiver from Federal requirements, and does not 
alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 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.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175, because the 
action of approving a NOX exemption under the Clean Air Act 
for northern Maine will not result in any new CAA requirements on 
tribes, impact any existing sources of air pollution on tribal lands, 
nor impair the maintenance of ozone national ambient air quality 
standards in tribal lands. Thus, Executive Order 13175 does not apply 
to this rule.
    Although Executive Order 13175 does not apply to this rule, EPA e-
mailed a description of this action to the Indian tribes in Maine 
before publication of the Notice of Proposed Rulemaking informing them 
of our proposed action. The Region also offered to discuss the waiver 
with the tribes. One Indian tribe commented on this action, and EPA's 
response to those concerns is provided in the Response to Comments 
section of this rulemaking.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045: Protection of Children from Environmental 
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to 
any rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it is not 
a significant regulatory action under Executive Order 12866, and 
because the Agency does not have reason to believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children [additional reductions in 
NOX emissions from this area beyond what the state 
regulations already provide for are not necessary for future attainment 
in any of Maine's ozone nonattainment areas or any other ozone 
nonattainment area in the Ozone Transport Region].

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H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    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.

I. National Technology Transfer and Advancement Act

    As noted in the proposed rule, section 12(d) of the National 
Technology Transfer and Advancement Act (NTTAA) of 1995, Public Law 
104-113, 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 that are developed or 
adopted by voluntary consensus standard bodies. The NTAA directs EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    The EPA believes that VCS are inapplicable to this action.
    This waiver of certain control requirements does not require the 
public to perform activities to which to the use of VCS would be 
relevant.

J. Congressional Review Act

    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). This rule will be effective March 6, 2006.

K. Petitions 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 April 4, 2006. 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, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements.

    Dated: January 27, 2006.
Stephen L. Johnson,
Administrator.


0
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 52.1023 is amended by adding paragraph (d) to read as 
follows:


Sec.  52.1023  Control strategy: Ozone.

* * * * *
    (d) Approval. EPA is approving an exemption request from the 
NOX requirements contained in Section 182(f) of the Clean 
Air Act for northern Maine. The exemption request was submitted by the 
Maine Department of Environmental Protection on March 24, 2005, and 
supplemented on April 19 and June 28, 2005. This approval exempts major 
sources of nitrogen oxides in Aroostook, Franklin, Oxford, Penobscot, 
Piscataquis, Somerset, Washington, and portions of Hancock and Waldo 
Counties from the requirements to implement controls meeting reasonably 
available control technology under the Clean Air Act, and nonattainment 
area new source review (NSR) for new sources and modifications. In 
Waldo County, this area includes only the following towns: Belfast, 
Belmont, Brooks, Burnham, Frankfort, Freedom, Jackson, Knox, Liberty, 
Lincolnville, Monroe, Montville, Morrill, Northport, Palermo, Prospect, 
Searsmont, Searsport, Stockton Springs, Swanville, Thorndike, Troy, 
Unity, Waldo, and Winterport. In Hancock County, this area includes 
only the following towns and townships: Amherst, Aurora, Bucksport, 
Castine, Dedham, Eastbrook, Ellsworth, Franklin, Great Pond, 
Mariaville, Orland, Osborn, Otis, Penobscot, Verona, Waltham, Oqiton 
Township (T4 ND), T3 ND, T39 MD, T40 MD, T41 MD, T32 MD, T34 MD, T35 
MD, T28 MD, T22 MD, T16 MD, T8 SD, T9 SD, T10 SD, and T7 SD.

[FR Doc. 06-984 Filed 2-2-06; 8:45 am]
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