[Federal Register Volume 80, Number 226 (Tuesday, November 24, 2015)]
[Rules and Regulations]
[Pages 73119-73122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29825]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2015-0593; A-1-FRL-9939-24-Region 1]


Air Plan Approval; ME; Repeal of the Maine's General Conformity 
Provision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a State 
Implementation Plan (SIP) revision submitted by the State of Maine. 
This revision removes State Regulation Chapter 141--Conformity of 
General Federal Actions from the SIP. The intended effect of this 
action is to remove the repealed State Regulation and leave the Federal 
General Conformity provisions in place to demonstrate conformity with 
the applicable SIP as required by section 176(c) of the Clean Air Act. 
This action is being taken in accordance with the Clean Air Act.

DATES: This direct final rule will be effective January 25, 2016, 
unless EPA receives adverse comments by December 24, 2015. 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-2015-0593 by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (617) 918-0047.
    4. Mail: ``Docket Identification Number EPA-R01-OAR-2015-0593'', 
Anne Arnold, U.S. Environmental Protection Agency, EPA New England 
Regional Office, Office of Ecosystem Protection, Air Quality Planning 
Unit, 5 Post Office Square--Suite 100, (Mail code OEP05-2), Boston, MA 
02109-3912.
    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, 
5 Post Office Square--Suite 100, (Mail code OEP05-2), Boston, MA 02109-
3912. 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 
legal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-
2015-0593. 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://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 http://www.regulations.gov, or email, information that you consider to be CBI 
or otherwise protected. The http://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 email comment directly to EPA without 
going through http://www.regulations.gov your email 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 
http://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 at http://www.regulations.gov or at U.S. 
Environmental Protection Agency, EPA New England Regional Office, 
Office of Ecosystem Protection, 5 Post Office Square--Suite 100, 
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 
legal holidays.
    In addition, 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 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: Ariel Garcia, Air Quality Unit, U.S. 
Environmental Protection Agency, EPA New England Regional Office, 5 
Post Office Square--Suite 100, (Mail code OEP05-2), Boston, MA 02109-
3912, telephone number (617) 918-1660, fax number (617) 918-0660, email 
[email protected].

[[Page 73120]]


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 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 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, were 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)). Following EPA approval of the 
State conformity provisions in a SIP revision, the approved State 
criteria and procedures would govern conformity determinations and the 
Federal conformity regulations contained in 40 CFR part 51 and part 93 
would apply only for the portion, if any, of the State's conformity 
provisions that is not approved by EPA. Finally, all SIP-approved 
requirements relating to general conformity remain enforceable until 
the State revises its SIP to specifically remove them from the SIP and 
that revision is approved by EPA.
    On October 11, 1996, the State of Maine submitted a formal revision 
to its 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.
    On June 29, 2007, the State of Maine submitted a second revision to 
its General Conformity SIP. This 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. EPA approved Maine's revision to its 
General Conformity SIP through a direct final rule published in the 
Federal Register on February 20, 2008 (73 FR 9203-9206) and effective 
on April 21, 2008.
    On April 5, 2010, EPA revisited the Federal General Conformity 
Requirements Rule to clarify the conformity process, authorize 
innovative and flexible compliance approaches, remove outdated or 
unnecessary requirements, reduce the paperwork burden, provide 
transition tools for implementing new standards, address issues raised 
by Federal agencies affected by the rules, and provide a better 
explanation of conformity regulations and policies. EPA's April 2010 
revised rule simplified state SIP requirements for general conformity, 
eliminating duplicative general conformity provisions codified at 40 
CFR part 93, subpart B and 40 CFR part 51, subpart W by removing 
section 51.850, and sections 51.852 through 51.860. Finally, the April 
2010 revision updated the Federal General Conformity Requirements Rule 
to reflect changes to governing laws passed by Congress since EPA's 
1993 rule.
    The ``Safe, Accountable, Flexible, Efficient Transportation Equity 
Act: A Legacy for Users,'' (SAFETEA-LU) passed by Congress in 1995 
contains a provision eliminating the Clean Air Act requirement for 
states to adopt general conformity SIPs. As a result of SAFETEA-LU, 
EPA's April 2010 General Conformity rule eliminated the Federal 
regulatory requirement for states to adopt and submit general 
conformity SIPs, instead making submission of a general conformity SIP 
a state option.
    The 2010 General Conformity amendments (Sections 51.851(c) as well 
as section 93.151) restated the requirement that in the absence of an 
EPA approved General Conformity SIP, Federal agencies shall use the 
provisions of 40 CFR part 93, subpart B to demonstrate conformity with 
the applicable implementation plan as required by section 176(c) of the 
Clean Air Act (42 U.S.C. 7506).

II. State Submittal

    On August 18, 2015, the Maine Department of Environmental 
Protection submitted a formal SIP revision to remove Chapter 141-
Conformity of General Federal Actions. Maine's Chapter 141 regulation 
incorporated-by-reference 40 CFR part 51, subpart W ``Determining 
Conformity of General Federal Actions to State or Federal 
Implementation Plans'' as published in the November 30, 1993, Federal 
Register (58 FR 63247-63253) and amended in the July 17, 2006 Federal 
Register, (71 FR 40420-40426). As stated above all of the general 
conformity provisions referenced in Maine's General Conformity 
regulation were deleted as duplicative on April 5, 2010. At the time 
they were approved into the SIP, provisions of Maine's General 
Conformity SIP were no less stringent then the Federal General 
Conformity regulations, nor did the SIP establish more stringent 
conformity criteria and procedures applying equally to non-Federal as 
well as Federal entities.
    As the State of Maine did not revise its SIP-approved Chapter 141--

[[Page 73121]]

Conformity of General Federal Actions following EPA's April 5, 2010 
General Conformity amendments, the current State rule with a state 
effective date of April 19, 2007, does not provide any flexibility, or 
relaxation to the general conformity criteria and procedures as allowed 
by the amendments.
    Maine Department of Environmental Protection repealed Chapter 141 
in July 2015 after public notice and opportunity for public hearing. 
The removal of Chapter 141--Conformity of General Federal Actions from 
the SIP will leave the Federal General Conformity Regulations at 40 CFR 
93.150 through 93.165 as well as 40 CFR 51.851, in place for 
administrative and enforcement purposes. Once EPA approves the removal 
of Chapter 141 from Maine's SIP, Federal actions can take advantage of 
the flexibility provided by the Federal General Conformity 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.

III. Final Action

    EPA is approving Maine's August 18, 2015, SIP revision to remove 
Chapter 141--Conformity of General Federal Actions from the SIP. EPA 
has evaluated this SIP revision and has determined that the State has 
complied with its administrative procedures to repeal Chapter 141. The 
appropriate public participation and comprehensive interagency 
consultations have been undertaken during development and adoption of 
this SIP revision. Finally, EPA has determined that removing Chapter 
141 from the Maine SIP will result in Federal agencies using the 
provisions of 40 CFR part 93, subpart B to demonstrate conformity with 
the applicable implementation plan as required by section 176(c) of the 
Clean Air Act (42 U.S.C. 7506). Federal actions can take advantage of 
the flexibility provided by the Federal General Conformity Rule which 
includes EPA's April 2010 General Conformity Amendments.
    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 January 
25, 2016 without further notice unless the Agency receives relevant 
adverse comments by December 24, 2015.
    If 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. 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 January 25, 2016 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.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation 
land or in any other area where EPA or an Indian tribe has demonstrated 
that a tribe has jurisdiction. In those areas of Indian country, the 
rule does not have tribal implications and will not impose substantial 
direct costs on tribal governments or preempt tribal law as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000).
    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 action 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 January 25, 2016. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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. Parties with objections to this direct final 
rule are encouraged to file a comment in response to the parallel 
notice of

[[Page 73122]]

proposed rulemaking for this action published in the proposed rules 
section of the Federal Register, rather than file an immediate petition 
for judicial review of this direct final rule, so that EPA can withdraw 
this direct final rule and address the comment in the proposed 
rulemaking. 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: November 5, 2015.
H. Curtis Spalding,
Regional Administrator, EPA New England.

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

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart U--Maine


Sec.  52.1020  [Amended]

0
2. In Sec.  52.1020(c), the table is amended by removing the entry for 
Chapter 141, ``Conformity of General Federal Actions.''

[FR Doc. 2015-29825 Filed 11-23-15; 8:45 am]
 BILLING CODE 6560-50-P