[Federal Register Volume 73, Number 34 (Wednesday, February 20, 2008)]
[Rules and Regulations]
[Pages 9203-9206]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-2884]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2007-0633; A-1-FRL-8517-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Maine; Conformity of General Federal Actions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving a State Implementation Plan (SIP) 
revision submitted by the State of Maine for the purpose of making the 
SIP consistent with recent additions to the Federal general conformity 
regulation. This revision incorporates by reference new definitions and 
establishes de minimis emission levels for fine particular matter 
(PM2.5) into Maine's existing general conformity criteria 
and procedures previously approved into the Maine SIP. This action is 
being taken in accordance with the Clean Air Act.

DATES: This direct final rule will be effective April 21, 2008, unless 
EPA receives adverse comments by March 21, 2008. If adverse comments 
are received, EPA 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: Submit your comments, identified by Docket ID Number EPA-
R01-OAR-2007-0633 by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: (617) 918-0047.
    4. Mail: ``Docket Identification Number EPA-R01-OAR-2007-0633'', 
Anne Arnold, U.S. Environmental Protection Agency, EPA New England 
Regional Office, One Congress Street, Suite 1100 (mail code CAQ), 
Boston, MA 02114-2023.
    5. Hand Delivery or Courier. Deliver your comments to: Anne Arnold, 
Manager, Air Quality Planning Unit, 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 to 4:30, excluding legal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-
2007-0633. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, 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 through www.regulations.gov, or e-
mail, information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
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 www.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 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, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. 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 www.regulations.gov or 
in hard copy at 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.
    In addition, copies of the State submittal are also available for 
public inspection during normal business hours, by appointment at the 
State Air Agency; 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: Donald O. Cooke, Air Quality Unit, 
U.S. Environmental Protection Agency, EPA New England Regional Office, 
One Congress Street, Suite 1100 (CAQ), Boston, MA 02114-2023, telephone 
number (617) 918-1668, fax number (617) 918-0668, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.
    Organization of this document. The following outline is provided to 
aid in locating information in this preamble.

I. Background and Purpose
II. State Submittal
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background and Purpose

    Section 176(c) of the Clean Air Act, as amended (the Act), 
prohibits Federal entities from taking actions in nonattainment or 
maintenance areas which do not conform to the State

[[Page 9204]]

implementation plan (SIP) for the attainment and maintenance of the 
national ambient air quality standards (NAAQS). Therefore, the purpose 
of conformity is to: (1) Ensure Federal activities do not interfere 
with the emission budgets in the SIPs; (2) ensure actions do not cause 
or contribute to new violations; and (3) ensure attainment and 
maintenance of the NAAQS. Section 176(c) of the Act also requires the 
EPA to promulgate criteria and procedures for demonstrating and 
ensuring conformity of Federal actions to an applicable implementation 
plan developed pursuant to Section 110 and Part D of the Act. EPA 
promulgated a final rulemaking on November 30, 1993 consisting of 40 
CFR part 93, subpart B ``Determining Conformity of General Federal 
Actions to State or Federal Implementation Plans,'' which applied to 
Federal agencies immediately (hereafter referred to as the General 
Conformity rule); and 40 CFR part 51, subpart W ``Determining 
conformity of general Federal Actions to State or Federal 
Implementation Plans'' which established requirements for States in 
submitting SIPs. The general conformity rules, except for the 40 CFR 
51.851(a) language requiring State submission of a SIP revision, are 
repeated at 40 CFR part 93, subpart B. The General Conformity rule 
establishes the criteria and procedures governing the determination of 
conformity for all Federal actions, except Federal highway and transit 
actions. \1\
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    \1\ Conformity to State or Federal Implementation Plans of 
transportation plans, programs, and projects which are developed, 
funded or approved under Title 23 U.S.C. or the Federal Transit Laws 
are implemented under 40 CFR part 51, subpart T and 40 CFR part 93, 
subpart A.
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    The General Conformity rule also establishes the criteria for EPA 
approval of SIPs. See 40 CFR 51.851 and 93.151. These criteria provide 
that the state provisions must be at least as stringent as the 
requirements specified in EPA's General Conformity rule, and that they 
can be more stringent only if they apply equally to Federal and non-
Federal entities (Sec. Sec.  51.851(b)).
    On October 11, 1996, the State of Maine submitted a formal revision 
to its State Implementation Plan (SIP). The SIP revision consisted of 
incorporating by reference 40 CFR 51.850 through 51.860 (with the 
exception of Sec.  51.851) thereby establishing general conformity 
criteria and procedures in the Maine SIP no more stringent than the 
Federal rule and not imposing any additional controls on non-Federal 
entities. EPA approved Maine's General Conformity SIP through a direct 
final rule published in the Federal Register on September 23, 1997, (62 
FR 49608-49611) and effective November 24, 1997.
    EPA amended the General Conformity rule on July 17, 2006, (71 FR 
40420-40427). In the amended rule, EPA revised the tables in 
subparagraphs (b)(1) and (b)(2) of 40 CFR 51.853 and 40 CFR 93.153 by 
adding the de minimis emission levels for PM2.5. The EPA 
also established 100 tons per year as the de minimis emission level for 
direct PM2.5 and each of its precursors as defined in 
revised Sec. Sec.  51.852 and 93.152. The PM2.5 precursors 
for the purposes of general conformity applicability are: volatile 
organic compounds (VOC's) and ammonia (NH3) emissions, which 
are only considered PM2.5 precursors in nonattainment areas 
where either a State or EPA has made a finding that they significantly 
contribute to the PM2.5 problem in a given area or to other 
downwind air quality concerns; NOX emissions, which are 
considered a PM2.5 precursor unless the State and EPA make a 
finding that NOX emissions from sources in the State do not 
significantly contribute to the PM2.5 problem in a given 
area or to other downwind air quality concerns; and SO2 
emissions, which are always considered a PM2.5 precursor. 
Since EPA did not designate any classifications for the PM2.5 
nonattainment areas under the 1997 National Ambient Air Quality 
Standards for PM2.5, EPA did not establish PM2.5 
de minimis emission levels for higher classified nonattainment areas.

II. State Submittal

    On June 29, 2007, the State of Maine submitted a formal revision to 
its State Implementation Plan (SIP). The SIP revision consists of 
incorporating by reference 40 CFR 51.852 (Definitions), and 51.853 
(Applicability), of 40 CFR part 51, subpart W, ``Determining Conformity 
of General Federal Actions to State or Federal Implementation Plans,'' 
as amended on July 17, 2006 in the Federal Register (71 FR 40420-
40426). By incorporating by reference the amended General Conformity 
rule, Maine's Chapter 141 ``Conformity of General Federal Actions,'' is 
no more stringent than the Federal rule and does not impose any 
additional controls on non-Federal entities.
    Maine's SIP revision was the subject of a public hearing held on 
March 1, 2007 in accordance with Federal and state administrative 
requirements. The Maine Board of Environmental Protection adopted the 
amendments to ``State Chapter 141--Conformity of General Federal 
Actions,'' on April 19, 2007. The Maine Office of the Attorney General 
certified Chapter 141 as to form and legality on May 7, 2007.
    EPA determined that the submittal of the Department of 
Environmental Protection's Chapter 141 ``Conformity of General Federal 
Actions'' was administratively and technically complete in a July 26, 
2007 completeness letter.

III. Final Action

    EPA is approving Maine's revised Chapter 141 ``Conformity of 
General Federal Actions,'' and incorporating this regulation into the 
Maine SIP. Maine's rule is consistent with the latest Federal General 
Conformity rule as amended on July 17, 2006. The EPA has evaluated 
Maine's SIP revision and has determined that the State has fully 
adopted the provisions of the General Conformity rule set forth at 40 
CFR part 51, subpart W. The appropriate public participation and 
comprehensive interagency consultations have been undertaken during 
development and adoption of this SIP revision.
    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 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 
relevant adverse comments be filed. This rule will be effective April 
21, 2008 without further notice unless the Agency receives relevant 
adverse comments by March 21, 2008.
    If the EPA receives such comments, then EPA will publish a notice 
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 on the proposed rule. All parties 
interested in commenting on the proposed rule should do so at this 
time. If no such comments are received, the public is advised that this 
rule will be effective on April 21, 2008 and no further action will be 
taken on the proposed rule. Please note that if EPA receives adverse 
comment on an amendment, paragraph, or section of this rule and if that 
provision may be severed from the remainder of the rule, EPA may adopt 
as final those provisions of the rule that are not the subject of an 
adverse comment.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and

[[Page 9205]]

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 approves a state rule 
implementing a Federal standard.
    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 April 21, 2008. 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: January 9, 2008.
Robert W. Varney,
Regional Administrator, EPA New England.

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 52.1020 is amended by reserving paragraphs (c)(60) and 
(c)(61) and by adding paragraph (c)(63) to read as follows:


Sec.  52.1020  Identification of plan.

* * * * *
    (c) * * *
    (60) [Reserved]
    (61) [Reserved]
* * * * *
    (63) Revision to Chapter 141 ``Conformity of General Federal 
Actions,'' submitted by the Maine Department of Environmental 
Protection on June 29, 2007 and effective in the State of Maine on May 
21, 2007.
    (i) Incorporation by reference.
    (A) Chapter 141 ``Conformity of General Federal Actions'' 1. 
Definition. Effective in the State of Maine on May 21, 2007.
    (ii) Additional Materials.
    (A) Chapter 141 ``Conformity of General Federal Actions,'' 2. 
Conformity to State and Federal Implementation Plans. The Maine 
Department of Environmental Protection amended its incorporation-by-
reference within Chapter 141.2 to reflect EPA's revision to the Federal 
General Conformity Rule for fine particulate matter promulgated on July 
17, 2006 (71 FR 40420-40427); specifically 40 CFR 51.852 Definitions 
and 40 CFR 51.853 Applicability.

0
3. In Sec.  52.1031, Table 52.1031 is amended by adding new entries 
under the existing state citation Chapter 141: Conformity of General 
Federal Actions to read as follows:


Sec.  52.1031  EPA-approved Maine regulations.

* * * * *

[[Page 9206]]



                               Table 52.1031.--EPA-Approved Rules and Regulations
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                                      Date         Date
     State        Title/subject    adopted by  approved by  Federal Register       52.1020
   citation                          state         EPA          citation
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                                                  * * * * * * *
141...........  Conformity of         4/19/07      2/20/08  [Insert Federal   (c)(63).........  Amendment to
                 General Federal                             Register page                       incorporate new
                 Actions.                                    number where                        fine
                                                             the document                        particulate
                                                             begins].                            matter
                                                                                                 provisions.
 
                                                  * * * * * * *
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    Note.--1. The regulations are effective statewide unless stated 
otherwise in comments section.

 [FR Doc. E8-2884 Filed 2-19-08; 8:45 am]
BILLING CODE 6560-50-P