[Federal Register Volume 86, Number 13 (Friday, January 22, 2021)]
[Proposed Rules]
[Pages 6591-6602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-00458]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R01-OAR-2020-0327; FRL-10018-02-Region 1]
Air Plan Approval; Maine; Infrastructure State Implementation
Plan Requirements for the 2015 Ozone Standard and Negative Declaration
for the Oil and Gas Industry for the 2008 and 2015 Ozone Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a State Implementation Plan (SIP) revision submitted by the
State of Maine. This revision addresses the infrastructure requirements
of the Clean Air Act (CAA or Act) for the 2015 ozone National Ambient
Air Quality Standards (NAAQS). Today's proposed action includes all
elements of these infrastructure requirements except for the ``Good
Neighbor'' or ``transport'' provisions, which will be addressed in a
future action. The infrastructure requirements are designed to ensure
that the structural components of each state's air quality management
program are adequate to meet the state's responsibilities under the
CAA.
EPA is also proposing to approve State of Maine submittals of
amendments to Chapter 110, Ambient Air Quality Standards, and of
statutory conflict-of-interest provisions in 38 Maine Revised Statutes
Annotated (MRSA) Section 341-A and 341-C. These two submittals support
the state's infrastructure submittal for the 2015 ozone NAAQS.
In addition, we are proposing to convert previous conditional
approvals of the sub-element of section 110(a)(2)(E) that addresses
State Board Requirements in Maine's infrastructure SIPs for the 2008
ozone; 2008 lead (Pb); 2010 nitrogen dioxide (NO2); 2010
sulfur dioxide (SO2); 1997, 2006, and 2012 fine particle
(PM2.5) NAAQS to full approvals. We are also proposing to
convert to full approval previous conditional approvals of section
110(a)(2)(A) (Emission limits and other control measures) in Maine's
[[Page 6592]]
infrastructure SIPS for the 1997 and 2006 PM2.5.
Finally, EPA is proposing to approve SIP revisions submitted by
Maine that provide the state's determination, via a negative
declaration for the 2008 and 2015 ozone standards, that there are no
facilities within its borders subject to EPA's 2016 Control Technique
Guideline (CTG) for the oil and gas industry.
This action is being taken under the Clean Air Act.
DATES: Written comments must be received on or before February 22,
2021.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2020-0327 at https://www.regulations.gov, or via email to
[email protected]. For comments submitted at Regulations.gov,
follow the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, the EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. The EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the FOR FURTHER INFORMATION CONTACT section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit https://www.epa.gov/dockets/commenting-epa-dockets. Publicly
available docket materials are available at https://www.regulations.gov
or at the U.S. Environmental Protection Agency, EPA Region 1 Regional
Office, Air and Radiation Division, 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 and facility closures due to COVID-19.
FOR FURTHER INFORMATION CONTACT: Alison C. Simcox, Air Quality Branch,
U.S. Environmental Protection Agency, EPA Region 1, 5 Post Office
Square--Suite 100, (Mail code 05-2), Boston, MA 02109-3912, tel. (617)
918-1684, email [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. Background and Purpose
A. What is the scope of this rulemaking?
B. What guidance did EPA use to evaluate Maine's Infrastructure
SIP for the 2015 ozone standard?
II. EPA's Evaluation of Maine's Infrastructure SIP for the 2015
Ozone Standard
A. Section 110(a)(2)(A)--Emission Limits and Other Control
Measures
B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data
System
C. Section 110(a)(2)(C)--Program for Enforcement of Control
Measures and for Construction or Modification of Stationary Sources
D. Section 110(a)(2)(D)--Interstate Transport
E. Section 110(a)(2)(E)--Adequate Resources
F. Section 110(a)(2)(F)--Stationary Source Monitoring System
G. Section 110(a)(2)(G)--Emergency Powers
H. Section 110(a)(2)(H)--Future SIP Revisions
I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan
Revisions Under Part D
J. Section 110(a)(2)(J)--Consultation With Government Officials;
Public Notifications; Prevention of Significant Deterioration;
Visibility Protection
K. Section 110(a)(2)(K)--Air Quality Modeling/Data
L. Section 110(a)(2)(L)--Permitting Fees
M. Section 110(a)(2)(M)--Consultation/Participation by Affected
Local Entities
N. Maine Regulations Submitted for Incorporation Into the SIP
III. EPA's Evaluation of Maine's Negative Declaration for the Oil
and Gas Industry for the 2008 and 2015 Ozone Standards
IV. Proposed Action
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews
I. Background and Purpose
Maine's Infrastructure SIP for the 2015 ozone standard.
On October 1, 2015, EPA promulgated a revision to the ozone NAAQS
(2015 ozone NAAQS), lowering the level of both the primary and
secondary standards to 0.070 parts per million (ppm).\1\ Section
110(a)(1) of the CAA requires states to submit, within 3 years after
promulgation of a new or revised standard, SIPs meeting the applicable
requirements of section 110(a)(2).\2\ On February 14, 2020, the Maine
Department of Environmental Protection (Maine DEP) submitted a revision
to the Maine State Implementation Plan (SIP). The SIP revision
addresses the infrastructure requirements of CAA sections 110(a)(1) and
110(a)(2) for the 2015 ozone NAAQS.
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\1\ National Ambient Air Quality Standards for Ozone, Final
Rule, 80 FR 65292 (October 26, 2015). Although the level of the
standard is specified in the units of ppm, ozone concentrations are
also described in parts per billion (ppb). For example, 0.070 ppm is
equivalent to 70 ppb.
\2\ SIP revisions that are intended to meet the applicable
requirements of section 110(a)(1) and (2) of the CAA are often
referred to as infrastructure SIPs and the applicable elements under
110(a)(2) are referred to as infrastructure requirements.
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Maine's Negative declaration for the Oil and Natural Gas Industry
for the 2008 and 2015 ozone standards.
On October 27, 2016, EPA published in the Federal Register the
``Final Control Techniques Guidelines for the Oil and Natural Gas
Industry.'' See 81 FR 74798. The CTG provided information to state,
local, and tribal air agencies to assist them in determining reasonably
available control technology (RACT) for volatile organic compound (VOC)
emissions from select oil and natural gas industry emission sources.
CAA section 182(b)(2)(A) requires that, for ozone nonattainment areas
classified as Moderate or above, states must revise their SIPs to
include provisions to implement RACT for each category of VOC sources
covered by a CTG document. CAA section 184(b)(1)(B) extends the RACT
obligation to all areas of states within the Ozone Transport Region
(OTR). Pursuant to CAA section 184(a), Maine is a member state of the
OTR. States subject to RACT requirements are required to adopt controls
that are at least as stringent as those found in the CTG either by
adopting regulations or issuing single-source Orders or Permits that
outline what the source is required to do to meet RACT. If no source
for a specified CTG exists in a state, the state must submit, as a SIP
revision, a negative declaration documenting this fact. On May 18,
2020, Maine DEP submitted for approval into the Maine SIP, a negative
declaration for the 2016 CTG for the Oil and Natural Gas Industry for
the 2008 and 2015 ozone standards.
A. What is the scope of this rulemaking?
EPA is proposing to approve SIP revisions submitted by Maine on
February 14, 2020, addressing the infrastructure requirements of CAA
sections 110(a)(1) and 110(a)(2) for the 2015 ozone NAAQS, except the
transport provisions which will be addressed in a future action.
Additionally, we are proposing to approve a regulation (ambient air
quality standards) submitted by Maine on May 28, 2019, and a statute
(conflict-
[[Page 6593]]
of-interest provisions) submitted by Maine on September 4, 2019, which
support the infrastructure SIP submittal. Finally, EPA is proposing to
approve a SIP revision submitted by Maine on May 18, 2020, that
provides the state's determination, via a negative declaration, that
there are no facilities within its borders subject to EPA's 2016 CTG
for the oil and gas industry for the 2008 and 2015 ozone standards.
Regarding the 2015 ozone infrastructure SIP submission, whenever
EPA promulgates a new or revised NAAQS, CAA section 110(a)(1) requires
states to make ``infrastructure SIP submissions'' to provide for the
implementation, maintenance, and enforcement of the NAAQS. These
submissions must meet the various requirements of CAA section
110(a)(2), as applicable. Due to ambiguity in some of the language of
CAA section 110(a)(2), EPA believes that it is appropriate to interpret
these provisions in the specific context of acting on infrastructure
SIP submissions. EPA has previously provided comprehensive guidance on
the application of these provisions through a guidance document for
infrastructure SIP submissions and through regional actions on
infrastructure submissions.\3\ Unless otherwise noted below, we are
following that approach in acting on this submission. In addition, in
the context of acting on such infrastructure submissions, EPA evaluates
the submitting state's SIP for compliance with statutory and regulatory
requirements, not for the state's implementation of its SIP.\4\ EPA has
other authority to address any issues concerning a state's
implementation of the rules, regulations, consent orders, etc. that
comprise its SIP.
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\3\ EPA explains and elaborates on these ambiguities and its
approach to address them in its September 13, 2013, Infrastructure
SIP Guidance (available in the docket for today's action), as well
as in numerous agency actions, including EPA's prior action on
Maine's infrastructure SIP to address the 2008 Ozone NAAQS. See 83
FR 28157 (June 18, 2018).
\4\ See Montana Envtl. Info. Ctr. v. Thomas, 902 F.3d 971 (9th
Cir. 2018).
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B. What guidance did EPA use to evaluate Maine's infrastructure SIP for
the 2015 ozone standard?
EPA highlighted the statutory requirement to submit infrastructure
SIPs within 3 years of promulgation of a new NAAQS in an October 2,
2007, guidance document entitled ``Guidance on SIP Elements Required
Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and
PM2.5 National Ambient Air Quality Standards'' (2007
memorandum).\5\ EPA has issued additional guidance documents and
memoranda, including a September 13, 2013, guidance document entitled
``Guidance on Infrastructure State Implementation Plan (SIP) Elements
under Clean Air Act Sections 110(a)(1) and 110(a)(2)'' (2013
memorandum).
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\5\ All referenced memoranda are included in the docket for
today's action.
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II. EPA's Evaluation of Maine's Infrastructure SIP for the 2015 Ozone
Standard
Maine's February 14, 2020, submission includes a detailed list of
Maine Laws and SIP-approved Air Quality Regulations that show precisely
how each component of its EPA-approved SIP meets the requirements of
section 110(a)(2) of the CAA for the 2015 ozone NAAQS. The following
review evaluates the state's submission in light of section 110(a)(2)
requirements and relevant EPA guidance. For Maine's February 2020
infrastructure submission, we provide an evaluation of the applicable
Section 110(a)(2) elements, excluding the transport provisions.
A. Section 110(a)(2)(A)--Emission Limits and Other Control Measures
This section (also referred to in today's action as an element) of
the Act requires SIPs to include enforceable emission limits and other
control measures, means or techniques, schedules for compliance, and
other related matters. However, EPA has long interpreted emission
limits and control measures for attaining the standards as being due
when nonattainment planning requirements are due.\6\ In the context of
an infrastructure SIP, EPA is not evaluating the existing SIP
provisions for this purpose. Instead, EPA is only evaluating whether
the state's SIP has basic structural provisions for the implementation
of the NAAQS.
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\6\ See, for example, EPA's final rule on ``National Ambient Air
Quality Standards for Lead,'' 73 FR 66964, 67034 (November 12,
2008).
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In its February 2020 submittal for the 2015 ozone NAAQS, Maine
cites state laws and regulations in satisfaction of element A. Maine
DEP statutory authority with respect to air quality is set out in 38
MRSA Chapter 4, ``Protection and Improvement of Air.'' Legislative
authority giving DEP general authority to promulgate regulations is
codified at 38 MRSA Chapter 2, Subchapter 1: ``Organization and
Powers.'' Statutory authority to establish emission standards and
regulations implementing ambient air quality standards is contained in
38 MRSA Chapter 4, sections 585 and 585-A.
Under element A of its February 14, 2020, infrastructure SIP
submittal for the 2015 ozone NAAQS, the Maine DEP cites over 30 state
regulations that it has adopted to control emissions related to ozone
and the ozone precursors, nitrogen oxides (NOX) and volatile
organic compounds (VOCs). Some of these, with their EPA approval
citation,\7\ are listed here: 06-096 Code of Maine Regulations (CMR)
Chapter 111 Petroleum Liquid Storage Vapor Control (79 FR 65587;
November 5, 2014); Chapter 115 Emission License Regulations (81 FR
50353; August 1, 2016); Chapter 127 New Motor Vehicle Emission
Standards (70 FR 21959; April 28, 2005); Chapter 129 Surface Coating
facilities 77 FR 30216; May 22, 2012); Chapter 134 Reasonably Available
Control Technology for Facilities that Emit Volatile Organic Compounds
(65 FR 20749; April 18, 2000); Chapter 138 Reasonably Available Control
Technology for Facilities that Emit Nitrogen Oxides (67 FR 57148;
September 9, 2002); and Chapter 145 NOX Control Program (70
FR 11879; March 10, 2005).
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\7\ The citations reference the most recent EPA approval of the
stated rule or of revisions to the rule.
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On May 22, 2019, Maine submitted a SIP revision containing Maine's
updated Chapter 110, ``Ambient Air Quality Standards,'' which was
previously approved by EPA on June 24, 2014. See 79 FR 35695. The
updates to Chapter 110 incorporate the current NAAQS for ozone and
PM2.5, and update and align the rules governing the Maine
ambient air quality standards to provide consistency with the federal
NAAQS. Therefore, EPA is proposing to approve updated Chapter 110 into
the SIP. Consequently, we are also proposing to convert to full
approval previous conditional approvals of section 110(a)(2)(A) for
Maine's infrastructure SIPs for the 1997 and 2006 PM2.5
NAAQS (October 16, 2012; 77 FR 63228).
EPA proposes that Maine meets the infrastructure requirements of
section 110(a)(2)(A) for the 2015 ozone NAAQS.
B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data System
This section requires SIPs to provide for establishment and
operation of appropriate devices, methods, systems, and procedures
necessary to monitor, compile, and analyze ambient air quality data,
and to make these data available to EPA upon request. Each year, states
submit annual air
[[Page 6594]]
monitoring network plans to EPA for review and approval. EPA's review
of these annual monitoring plans includes our evaluation of whether the
state: (i) Monitors air quality at appropriate locations throughout the
state using EPA-approved Federal Reference Methods or Federal
Equivalent Method monitors; (ii) submits data to EPA's Air Quality
System (AQS) in a timely manner; and (iii) provides EPA Regional
Offices with prior notification of any planned changes to monitoring
sites or the network plan.
Pursuant to authority granted to it by 38 Maine Revised Statutes
Annotated (MRSA) Sec. Sec. 341-A(1) and 584-A, Maine DEP operates an
air quality monitoring network, and EPA approved the state's 2020
Annual Air Monitoring Network Plan for ozone on September 11, 2019.\8\
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\8\ EPA's approval letter is included in the docket for this
action.
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Furthermore, DEP populates AQS with air quality monitoring data in
a timely manner, and provides EPA with prior notification when
considering a change to its monitoring network or plan. EPA proposes
that Maine has met the infrastructure SIP requirements of section
110(a)(2)(B) with respect to the 2015 ozone NAAQS.
C. Section 110(a)(2)(C)--Program for Enforcement of Control Measures
and for Construction or Modification of Stationary Sources
States are required to include a program providing for enforcement
of all SIP measures and for the regulation of construction of new or
modified stationary sources to meet new source review (NSR)
requirements under prevention of significant deterioration (PSD) and
nonattainment new source review (NNSR) programs. Part C of the CAA
(sections 160-169B) addresses PSD, while part D of the CAA (sections
171-193) addresses NNSR requirements.
The evaluation of each state's submission addressing the
infrastructure SIP requirements of section 110(a)(2)(C) covers the
following: (i) Enforcement of SIP measures; (ii) PSD program for major
sources and major modifications; and (iii) a permit program for minor
sources and minor modifications.
Sub-Element 1: Enforcement of SIP Measures
Maine's authority for enforcing SIP measures is established in 38
MRSA Section 347-A, ``Violations,'' 38 MRSA Section 347-C, ``Right of
inspection and entry,'' 38 MRSA Section 348, ``Judicial Enforcement,''
38 MRSA Section 349, ``Penalties,'' and 06-096 CMR Chapter 115, ``Major
and Minor Source Air Emission License Regulations,'' and includes
processes for both civil and criminal enforcement actions. Construction
of new or modified stationary sources in Maine is regulated by 06-096
CMR Chapter 115, ``Major and Minor Source Air Emission License
Regulations,'' which requires best available control technology (BACT)
controls for PSD sources, including the ozone precursors VOC and
NOX. EPA proposes that Maine has met the enforcement of SIP
measures requirements of section 110(a)(2)(C) with respect to the 2015
ozone NAAQS.
Sub-Element 2: PSD Program for Major Sources and Major Modifications
Prevention of significant deterioration (PSD) applies to new major
sources or modifications made to major sources for pollutants where the
area in which the source is located is in attainment of, or
unclassifiable with regard to, the relevant NAAQS. EPA interprets the
CAA as requiring each state to make an infrastructure SIP submission
for a new or revised NAAQS demonstrating that the air agency has a
complete PSD permitting program in place satisfying the current
requirements for all regulated NSR pollutants.
Maine DEP's EPA-approved PSD rules, contained at 06-096 CMR Chapter
115, ``Major and Minor Source Air Emission License Regulations,''
contain provisions that address applicable requirements for all
regulated NSR pollutants, including Greenhouse Gases (GHGs).
In determining whether a state has a comprehensive PSD permit
program, EPA reviews the SIP to ensure that the air agency has a PSD
permitting program meeting the current requirements for all regulated
NSR pollutants, including the following EPA rules: The ``Final Rule to
Implement the 8-Hour Ozone National Ambient Air Quality Standard--Phase
2; Final Rule to Implement Certain Aspects of the 1990 Amendments
Relating to New Source Review and Prevention of Significant
Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and
Ozone NAAQS; Final Rule for Reformulated Gasoline'' (the ``Phase 2
Rule''), 70 FR 71612 (November 29, 2005); the ``Implementation of the
New Source Review (NSR) Program for Particulate Matter Less than 2.5
Micrometers (PM2.5)'' (the ``2008 NSR Rule''), 73 FR 28321
(May 16, 2008); and the ``Prevention of Significant Deterioration (PSD)
for Particulate Matter Less Than 2.5 Micrometers (PM2.5)--
Increments, Significant Impact Levels (SILs) and Significant Monitoring
Concentration (SMC)'' (the ``2010 NSR Rule''), 75 FR 64864 (October 20,
2010. In our proposal on March 26, 2018, regarding the submittal of
infrastructure SIPS for the 2008 Pb, 2008 ozone, and 2010
NO2 NAAQS by the Maine DEP, we explained how Maine's SIP
meets the requirements of the Phase 2 Rule, the 2008 NSR Rule, and the
2010 NSR Rule. See 83 FR 12905. Based on our rationale contained in the
March 26, 2018, notice, we propose to approve Maine's infrastructure
SIP submittal with respect to the requirements of the Phase 2 Rule, the
2008 NSR Rule, and the 2010 NSR Rule.
We are proposing to approve Maine's February 2020 infrastructure
submittal for this PSD sub-element of section 110(a)(2)(C) for the 2015
ozone NAAQS.
Sub-Element 3: Preconstruction Permitting for Minor Sources and Minor
Modifications
To address the pre-construction regulation of the modification and
construction of minor stationary sources and minor modifications of
major stationary sources, an infrastructure SIP submission should
identify the existing EPA-approved SIP provisions and/or include new
provisions that govern the minor source pre-construction program that
regulate emissions of the relevant NAAQS pollutants.
EPA last approved revisions to Maine's minor NSR program on August
1, 2016 (81 FR 50353). Maine and EPA rely on the existing minor NSR
program in 06-096 CMR Chapter 115 to ensure that new and modified
sources not captured by the major NSR permitting programs do not
interfere with attainment and maintenance of the 2015 ozone NAAQS.
We are proposing to find that Maine has met the requirement to have
a SIP-approved minor new source review permit program as required under
Section 110(a)(2)(C) for the 2015 ozone NAAQS.
D. Section 110(a)(2)(D)--Interstate Transport
One of the structural requirements of section 110(a)(2) is section
110(a)(2)(D)(i), also known as the ``good neighbor'' provisions, which
generally requires SIPs to contain adequate provisions to prohibit in-
state emissions activities from having certain adverse air quality
effects on neighboring states due to interstate transport of air
pollution.
In particular, section 110(a)(2)(D)(i)(I) requires SIPs to include
provisions prohibiting any source or other type of emissions activity
in one state from emitting any air pollutant in amounts
[[Page 6595]]
that will contribute significantly to nonattainment, or interfere with
maintenance, of the NAAQS in another state. EPA commonly refers to
these requirements as Prong 1 (significant contribution to
nonattainment) and Prong 2 (interference with maintenance). A state's
SIP submission for Prongs 1 and 2 is also referred to as a state's
``Transport SIP.'' In today's action, EPA is not evaluating Maine's
Transport SIP (i.e., Prongs 1 and 2; combined as (D)1 in Table 1
below). EPA will address Maine's Transport SIP for the 2015 ozone NAAQS
in a future action.
Today's action, however, does address Section 110(a)(2)(D)(i)(II),
which requires SIPs to contain adequate provisions to prohibit
emissions that will interfere with measures included in the applicable
implementation plan for any other state under part C of the Act to
prevent significant deterioration of air quality and to protect
visibility. EPA commonly refers to these requirements as Prong 3
(Prevention of Significant Deterioration) and Prong 4 (Visibility
Protection). Today's action also addresses Section 110(a)(2)(D)(ii) of
the Act, which requires SIPs to contain provisions to ensure compliance
with sections 126 and 115 of the Act relating to interstate and
international pollution abatement, respectively.
Section 110(a)(2)(D)(i)(II)--PSD (Prong 3)
To prevent significant deterioration of air quality, this sub-
element requires SIPs to include provisions that prohibit any source or
other type of emissions activity in one state from interfering with
measures that are required in any other state's SIP under Part C of the
CAA. As explained in the 2013 memorandum,\9\ a state may meet this
requirement with respect to in-state sources and pollutants that are
subject to PSD permitting through a comprehensive PSD permitting
program that applies to all regulated NSR pollutants and that satisfies
the requirements of EPA's PSD implementation rules. Maine has a
comprehensive PSD permitting program in place satisfying the current
requirements for all regulated NSR pollutants, as explained above in
the discussion of Section 110(a)(2)(C).
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\9\ Included in the docket for today's action.
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For in-state sources not subject to PSD, this requirement can be
satisfied through a fully approved nonattainment new source review
(NNSR) program with respect to any previous NAAQS. EPA approved
revisions to Maine's NNSR regulations on February 14, 1996. See 61 FR
5690. These NNSR regulations contain provisions for how the state must
treat and control sources in nonattainment areas, consistent with 40
CFR 51.165, or appendix S to 40 CFR part 51.
For these reasons, EPA proposes to approve Maine's submittal for
the PSD requirements of 110(a)(2)(D)(i)(II) for the 2015 ozone NAAQS.
Section 110(a)(2)(D)(i)(II)--Visibility Protection (Prong 4)
Prong 4 requires a state's SIP to have adequate provisions
prohibiting emissions in amounts that will interfere with measures in
other states' SIPs to protect visibility. The prong 4 requirement is
closely connected to the regional haze program under part C of the CAA,
in which states work together in a regional planning process to
determine each state's contribution to the visibility impairment in
that region and agree to emission reduction measures to improve
visibility. Maine is a member of the Mid-Atlantic/North East Visibility
Union. EPA regulations require that a state participating in a regional
planning process include in its regional haze SIP all measures needed
to achieve its apportionment of emission reduction obligations agreed
upon through that process. See, e.g., 40 CFR 51.308(d)(3). Thus, a
fully approved regional haze SIP meeting the requirements of 40 CFR
51.308 will ensure that emissions from sources under an air agency's
jurisdiction are not interfering with measures required to be included
in other air agencies' plans to protect visibility and will, therefore,
satisfy Prong 4.
EPA approved Maine's Regional Haze SIP on April 24, 2012 (77 FR
24385). Accordingly, EPA proposes that Maine meets the visibility
protection requirements of 110(a)(2)(D)(i)(II) for the 2015 ozone
NAAQS.
Section 110(a)(2)(D)(ii)--Interstate Pollution Abatement
This sub-element requires that each SIP contain provisions
requiring compliance with requirements of CAA section 126 relating to
interstate pollution abatement. Section 126(a) requires new or modified
sources to notify neighboring states of potential impacts from the
source. The statute does not specify the method by which the source
should provide the notification. States with SIP-approved PSD programs
must have a provision requiring such notification by new or modified
sources.
EPA-approved regulations require the Maine DEP to provide pre-
construction notice of new or modified sources to, among others, ``any
State . . . whose lands may be affected by emissions from the source or
modification.'' See 06-096 CMR Chapter 115, Sec. IX(E)(3); approved
March 23, 1993 (58 FR 15422). Such notice ``shall announce availability
of the application, the Department's preliminary determination in the
form of a draft order, the degree of increment consumption that is
expected from the source or modification, as well as the opportunity
for submission of written public comment.'' See 06-096 CMR Chapter 115,
Sec. IX(E)(2).
These public notice requirements are consistent with the Federal
SIP-approved PSD program's public notice requirements for affected
states under 40 CFR 51.166(q). Therefore, we propose to approve Maine's
compliance with the infrastructure SIP requirements of CAA section
126(a) for the 2015 ozone NAAQS. Maine has no obligations under any
other provision of CAA section 126, and no source or sources within the
state are the subject of an active finding under section 126 with
respect to the 2015 ozone NAAQS.
Section 110(a)(2)(D)(ii)--International Pollution Abatement
This sub-element also requires each SIP to contain provisions
requiring compliance with the applicable requirements of CAA section
115 relating to international pollution abatement. Section 115
authorizes the Administrator to require a state to revise its SIP to
alleviate international transport into another country where the
Administrator has made a finding with respect to emissions of a NAAQS
pollutant and its precursors, if applicable. There are no final
findings under section 115 against Maine with respect to the 2015 ozone
NAAQS. Therefore, EPA is proposing that Maine has met the applicable
infrastructure SIP requirements of section 110(a)(2)(D)(ii) related to
CAA section 115 for the 2015 ozone NAAQS.
E. Section 110(a)(2)(E)--Adequate Resources
Section 110(a)(2)(E)(i) requires each SIP to provide assurances
that the state will have adequate personnel, funding, and legal
authority under state law to carry out its SIP. In addition, section
110(a)(2)(E)(ii) requires each state to comply with the requirements
for state boards in CAA section 128. Finally, section 110(a)(2)(E)(iii)
requires that, where a state relies upon local or regional governments
or agencies for the implementation of its SIP provisions, the state
retain responsibility for ensuring implementation of SIP obligations
with respect to relevant
[[Page 6596]]
NAAQS. Section 110(a)(2)(E)(iii), however, does not apply to this
action because Maine does not rely upon local or regional governments
or agencies for the implementation of its SIP provisions.
Sub-Element 1: Adequate Personnel, Funding, and Legal Authority Under
State Law To Carry Out Its SIP, and Related Issues
Maine, through its infrastructure SIP submittal, has documented
that its air agency has authority and resources to carry out its SIP
obligations. Maine cites 38 MRSA Sec. 341-A, ``Department of
Environmental Protection,'' 38 MRSA Sec. 341-D, ``Board
responsibilities and duties,'' 38 MRSA Sec. 342, ``Commissioner,
duties,'' and 38 MRSA Sec. 581, ``Declaration of findings and
intent.'' These statutes provide the Maine DEP with the legal authority
to enforce air pollution control requirements and carry out SIP
obligations with respect to the 2015 ozone NAAQS. Additionally, state
law provides the DEP with the authority to assess preconstruction
permit fees and annual operating permit fees from air emissions sources
and establishes a general revenue reserve account within the general
fund to finance the state clean air programs. Maine also receives CAA
sections 103 and 105 grant funds through Performance Partnership Grants
along with required state-matching funds to provide funding necessary
to carry out SIP requirements.
Maine states in its February 14, 2020, submittal for 2015 ozone
NAAQS that the Bureau of Air Quality had a staff of 53 and a budget of
$4.8 million for FY 2016. ME DEP staff and operations are funded by the
State and through EPA grants, including annual funding through CAA
sections 103 and 105 to assist with the costs of implementing programs
for the prevention and control of air pollution or implementation of
national primary and secondary ambient air quality standards. Maine
also has an EPA-approved fee program under CAA title V which is used to
support title V program elements such as permitting, monitoring,
testing, inspections, and enforcement. Furthermore, ME DEP's budget has
been consistent over the past number of years and over these years
Maine has been able to meet its statutory commitments under the
Act.\10\ Based upon Maine's submittal and this additional information,
EPA proposes that Maine meets the infrastructure SIP requirements of
this sub-element of section 110(a)(2)(E) for the 2015 ozone NAAQS.
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\10\ https://www.maine.gov/budget/sites/maine.gov.budget/files/inline-files/Annual%20Report%202018-2019%20NEW.PDF.
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Sub-Element 2: State Board Requirements Under Section 128 of the CAA
Section 110(a)(2)(E)(ii) requires each SIP to contain provisions
that comply with the state board requirements of section 128(a) of the
CAA. That provision contains two explicit requirements: (1) That any
board or body which approves permits or enforcement orders under this
chapter shall have at least a majority of members who represent the
public interest and do not derive any significant portion of their
income from persons subject to permits and enforcement orders under
this chapter, and (2) that any potential conflicts of interest by
members of such board or body or the head of an executive agency with
similar powers be adequately disclosed. Section 128 further provides
that a state may adopt more stringent conflicts of interest
requirements and requires EPA to approve any such requirements
submitted as part of a SIP.
Maine DEP consists of a Commissioner and a Board of Environmental
Protection (``BEP'' or ``Board''), which is an independent authority
under state law that reviews certain permit applications in the first
instance and also renders final decisions on appeals of permitting
actions taken by the Commissioner as well as some enforcement decisions
by the Commissioner. Because the Board has authority under state law to
hear appeals of some CAA permits and enforcement orders, EPA considers
that the Board has authority to ``approve'' those permits or
enforcement orders, as recommended in the 2013 Guidance at 42, and that
the requirement of CAA Sec. 128(a)(1) applies to Maine--that is, that
``any board or body which approves permits or enforcement orders under
this chapter shall have at least a majority of members who represent
the public interest and do not derive any significant portion of their
income from persons subject to permits and enforcement orders under
this chapter.''
Pursuant to state law, the BEP consists of seven members appointed
by the Governor, subject to confirmation by the State Legislature. See
38 MRSA Sec. 341-C(1). The purpose of the Board ``is to provide
informed, independent and timely decisions on the interpretation,
administration and enforcement of the laws relating to environmental
protection and to provide for credible, fair and responsible public
participation in department decisions.'' Id. Sec. 341-B. State law
further provides that Board members ``must be chosen to represent the
broadest possible interest and experience that can be brought to bear
on the administration and implementation of'' Maine's environmental
laws and that ``[a]t least 3 members must have technical or scientific
backgrounds in environmental issues and no more than 4 members may be
residents of the same congressional district.'' Id. Sec. 341-C(2). As
EPA has also explained in previous notices of proposed rulemakings
related to Maine infrastructure SIP submittals, section 341-C fulfills
the requirement that at least a majority of Board members represent the
public interest, but it does not address the requirement that at least
a majority ``not derive any significant portion of their income from
persons subject to'' air permits and enforcement orders. See, e.g., 83
FR 66184 at 66192 (December 26, 2018). Nor is section 341-C(2)
currently in Maine's SIP. Id. In those previous actions, however, Maine
DEP committed to revise section 341-C to address the requirement that
at least a majority of Board members ``not derive a significant portion
of their income from persons subject to'' air permits or enforcement
orders and to submit the necessary provisions to EPA for inclusion in
the SIP. Id.
On September 4, 2019, Maine did so, submitting revisions to 38 MRSA
sections 341-C(2) and 341-C(8) for inclusion in the SIP.\11\
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\11\ By email dated October 20, 2020, Maine DEP clarified that
it was requesting to add 38 MRSA Sec. 341-C(8) to the SIP, except
subparagraph (A), which addresses Board member participation in
decisions regarding permits issued under the Clean Water Act. The
October 20, 2020, email is included in the docket for this action.
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Maine revised section 341-C(2) by adding one word, indicating that
Board members ``must be chosen to represent the broadest possible
public interest and experience that can be brought to bear on the
administration and implementation of'' Maine's environmental laws.
(emphasis added). EPA concludes that the addition of the word
``public'' only strengthens the conclusion that Maine fulfills the
requirement that at least a majority of Board members represent the
public interest. As for section 341-C(8), it now provides that:
A board member may not participate in the review of or act on
any permitting decision or enforcement order under the federal Clean
Air Act . . . if the board member receives or derives a significant
portion of that board member's income from persons subject to
permits or enforcement orders under the federal Clean Air Act. Board
members whose participation is restricted under this paragraph shall
recuse themselves from all
[[Page 6597]]
permitting and enforcement matters under the federal Clean Air Act.
38 MRSA Sec. 341-C(8)(B). Section 341-C(8) further provides, as
recommended in EPA guidance,\12\ that ``a significant portion of
income'' means ``10% or more of gross personal income for a calendar
year'' or ``50% or more if the recipient is over 60'' and receives it
``under retirement, pension or similar arrangement.''
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\12\ See Memorandum from David O. Bickart to Regional Air
Directors, ``Guidance to States for Meeting Conflict of Interest
Requirements of Section 128,'' Suggested Definitions, March 2, 1978,
included in the docket for this action.
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EPA proposes that section 341-C(2) and (8)(B) satisfy the
requirements of CAA Sec. 128(a)(1) that at least a majority of Board
members ``represent the public interest and do not derive any
significant portion of their income from persons subject to'' air
permits and enforcement orders. EPA also proposes to add revised
sections 341-C(2) and (8)(B) to the SIP, as requested by Maine DEP. We
are also proposing to convert to full approval our previous conditional
approvals of Maine's infrastructure SIP submittals for the 2008 ozone,
2008 Pb and 2010 NO2 NAAQS (June 18, 2018; 83 FR 28157); the
2010 SO2 NAAQS (April 30, 2019; 84 FR 18142); the 1997 and
2006 PM2.5 NAAQS (October 16, 2012; 77 FR 63228); and the
2012 PM2.5 NAAQS (October 1, 2018; 83 FR 49295) for these
particular requirements of section 110(a)(2)(E)(ii).
As noted above, section 128(a)(2) of the Act provides that ``any
potential conflicts of interest by members of such board or body or the
head of an executive agency with similar powers be adequately
disclosed.'' The purpose of section 128(a)(2) is to assure that
conflicts of interest are disclosed by the ultimate decision maker in
permit or enforcement order decisions. See, e.g., 80 FR 42446, 42454
(July 17, 2015). Although the Board is the ultimate decision maker on
air permitting decisions in Maine, certain air enforcement orders of
the Maine DEP Commissioner are not reviewable by the Board, but rather
may be appealed directly to Maine Superior Court. For this reason, EPA
interprets the potential conflict-of-interest requirements of CAA Sec.
128(a)(2) to be applicable in Maine to both Board members and the DEP
Commissioner.
In the infrastructure SIP action for the 2008 Pb, 2008 ozone, and
2010 NO2 NAAQS, EPA determined that Maine's conflict of
interest statute, 5 MRSA Sec. 18, and a provision explicitly making it
applicable to Board members, 38 MRSA Sec. 341-C(7), together satisfy
the CAA section 128(a)(2) requirement for Maine with respect to Board
members, and EPA approved both statutes into the Maine SIP. See 83 FR
28157 (June 18, 2018). For more information, see 83 FR 12905, 12912
(March 26, 2018). EPA proposes that Maine's SIP also satisfies CAA
section 128(a)(2) with respect to Board members for the 2015 ozone
NAAQS for the same reasons.
Regarding the DEP Commissioner, state law at 38 MRSA Sec. 341-
A(3)(D) also explicitly makes that official subject to 5 MRSA Sec. 18,
thus satisfying CAA section 128(a)(2) with respect to the Commissioner.
While 38 MRSA Sec. 341-A(3)(D) is not currently in the SIP, Maine DEP
submitted it to EPA on September 4, 2019, and requested that it be
added to the SIP. Therefore, we propose to approve, and incorporate
into the Maine SIP, 38 MRSA Sec. 341-A(3)(D) for the 2015 ozone NAAQS.
We also propose to convert previous conditional approvals of Maine's
infrastructure SIP submittals for the 2008 ozone; 2008 Pb; 2010
NO2; 2010 SO2; 1997, 2006, and 2012
PM2.5 NAAQS to full approvals for section 128(a)(2).
In sum, and for the reasons provided above, EPA proposes that Maine
meets the infrastructure SIP requirements of section 110(a)(2)(E)(ii)
for the 2015 ozone NAAQS.
F. Section 110(a)(2)(F)--Stationary Source Monitoring System
States must establish a system to monitor emissions from stationary
sources and submit periodic emissions reports. Each plan shall also
require the installation, maintenance, and replacement of equipment,
and the implementation of other necessary steps, by owners or operators
of stationary sources to monitor emissions from such sources. The state
plan shall also require periodic reports on the nature and amounts of
emissions and emissions-related data from such sources, and correlation
of such reports by each state agency with any emission limitations or
standards established pursuant to this chapter. Lastly, the reports
shall be available at reasonable times for public inspection.
Maine's infrastructure submittal references several existing state
regulations that require sources to monitor emissions and submit
reports. Maine 06-096 CMR Chapter 117, ``Source Surveillance''
specifies air-emission sources that are required to operate continuous
emission monitoring systems (CEMS) and details the performance
specifications, quality assurance requirements and procedures for such
systems, and subsequent record keeping and reporting requirements. See
54 FR 11524 (August 9, 1988). Maine 06-096 CMR Chapter 137, ``Emission
Statements'' requires sources to monitor and report annually to Maine
DEP emissions of criteria pollutants and other emissions-related
information under certain circumstances. See 82 FR 20257 (May 1, 2017).
Maine cites its regulation for implementing its operating permit
program pursuant to 40 CFR part 70: 06-096 CMR Chapter 140, ``Part 70
Air Emission License Regulations.'' These regulations identify the
sources of air emissions that require a Part 70 air emission license
and incorporate the requirements of Title IV and Title V of the Clean
Air Act, as amended, 42 U.S.C. 7401, et seq.; and 38 MRSA Sec. Sec.
344 and 590. These regulations contain compliance assurance
requirements regarding monitoring and reporting for licensed sources
requiring a Part 70 air emission license. See 66 FR 52874 (October 18,
2001). In addition, Maine cites 06-096 CMR Chapter 115, ``Major and
Minor Source Air Emission License Regulations,'' which contains
compliance assurance requirements for licensed sources. See 81 FR 50353
(August 1, 2016).
Regarding the section 110(a)(2)(F) requirements that the SIP
provides for correlation and public availability of emission reports,
Maine's emission statement rule, Chapter 137, requires facilities to
report emissions of air pollutants on an annual basis. The Maine DEP
uses a web-based electronic reporting system, the Maine Air Emissions
Inventory Reporting System (``MAIRIS''), to submit reported emissions
data to EPA under the national emission inventory (NEI) program. NEI
data are available to the public.\13\ The MAIRIS system electronically
correlates reported emissions data with permit conditions and other
applicable standards and identifies inconsistencies and potential
compliance concerns.
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\13\ NEI data are available at https://www.epa.gov/air-emissions-inventories.
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In addition, Maine DEP certifies that Maine's Freedom of Access law
does not include any exceptions that apply to stationary source
emissions and that there are no provisions in Maine law that would
prevent the use of any credible evidence of noncompliance, as required
by 40 CFR 51.212. See also 06-096 CMR Chapter 140, Sec. 3(E)(7)(a)(v)
(``Notwithstanding any other provision in the State Implementation Plan
approved by the EPA or Section 114(a) of the CAA, any credible evidence
may
[[Page 6598]]
be used for the purpose of establishing whether a person has violated
or is in violation of any statute, regulation, or Part 70 license
requirement.'').
EPA proposes that Maine meets the infrastructure SIP requirements
of section 110(a)(2)(F) for the 2015 ozone NAAQS.
G. Section 110(a)(2)(G)--Emergency Powers
This section requires that a plan provide for state authority
analogous to that provided to the EPA Administrator in section 303 of
the CAA, and adequate contingency plans to implement such authority.
Section 303 of the CAA provides authority to the EPA Administrator to
seek a court order to restrain any source from causing or contributing
to emissions that present an ``imminent and substantial endangerment to
public health or welfare, or the environment.'' Section 303 further
authorizes the Administrator to issue ``such orders as may be necessary
to protect public health or welfare or the environment'' in the event
that ``it is not practicable to assure prompt protection . . . by
commencement of such civil action.''
We propose to find that a combination of state statutes and
regulations discussed in Maine's submittal provides for authority
comparable to that given the Administrator in CAA section 303, as
explained below. First, 38 MRSA Sec. 347-A, ``Emergency Orders,''
provides that ``[w]henever it appears to the commissioner, after
investigation, that there is a violation of the laws or regulations
[DEP] administers or of the terms or conditions of any of [DEP's]
orders that is creating or is likely to create a substantial and
immediate danger to public health or safety or to the environment, the
commissioner may order the person or persons causing or contributing to
the hazard to immediately take such actions as are necessary to reduce
or alleviate the danger.'' See 38 MRSA Sec. 347-A(3). Section 347-A
further authorizes the DEP Commissioner to initiate an enforcement
action in state court in the event of a violation of such emergency
order issued by the Commissioner. Id. Sec. 347-A(1)(A)(4). Similarly,
38 MRSA Sec. 348, ``Judicial Enforcement,'' authorizes DEP to
institute injunction proceedings ``[i]n the event of a violation of any
provision of the laws administered by [DEP] or of any order,
regulation, license, permit, approval, administrative consent agreement
or decision of the board or commissioner.'' Id. Sec. 348(1). Section
348 also authorizes DEP to seek a court order to a restrain a source if
it ``finds that the discharge, emission or deposit of any materials
into any waters, air or land of th[e] State constitutes a substantial
and immediate danger to the health, safety or general welfare of any
person, persons or property.'' Id. Sec. 348(3). Thus, these provisions
authorize DEP to issue an administrative order or to seek a court order
to restrain any source from causing or contributing to emissions that
present an imminent and substantial endangerment to public health or
welfare, or the environment, if there is also a violation of a law,
regulation, order, or permit administered or issued by DEP, as the case
may be.
Maine also cites 38 MRSA Sec. 591, ``Prohibitions,'' as
contributing to its authority. Section 591 provides that ``[n]o person
may discharge air contaminants into ambient air within a region in such
manner as to violate ambient air quality standards established under
this chapter or emission standards established pursuant to section 585,
585-B or 585-K.'' In those cases where emissions of ozone, or ozone
precursors may be causing or contributing to an ``imminent and
substantial endangerment to public health or welfare, or the
environment,'' a violation of Sec. 591 would also occur, since Maine
law provides that ambient air quality standards are designed to prevent
``air pollution,'' id. Sec. 584, which state law expressly defines as
``the presence in the outdoor atmosphere of one or more air
contaminants in sufficient quantities and of such characteristics and
duration as to be injurious to human, plant or animal life or to
property, or which unreasonably interfere with the enjoyment of life
and property,'' id. Sec. 582(3) (emphasis added).
In its submittal, Maine further explains that sections 347-A and
591 ``together authorize the Commissioner to issue an emergency order
upon finding an apparent violation of DEP laws or regulations to
address emissions of criteria pollutants, air contaminants governed by
standards promulgated under section 585, and hazardous air pollutants
governed by standards promulgated under section 585-B.'' Maine explains
that, in the unlikely event that air emissions create a substantial or
immediate threat to the public health, safety, or to the environment
without violating any DEP law or regulation, the DEP commissioner can
notify the Governor of an imminent threat, and the Governor can then
exercise emergency authority under 37-B MRSA Sec. 742 to issue an
order to terminate the cause of the emergency. In the declaration of a
state of emergency, the Governor may, among other things, ``[o]rder the
termination, temporary or permanent, of any process, operation, machine
or device which may be causing or is understood to be the cause of the
state of emergency,'' id. Sec. 742(1)(C)(11).
Finally, Maine's submittal cites 06-096 CMR Chapter 109,
``Emergency Episode Regulations,'' which sets forth various emission
reduction plans intended to prevent air pollution from reaching levels
that would cause imminent and substantial harm and recognizes the
Commissioner's authority to issue additional emergency orders pursuant
to 38 MRSA Sec. 347-A, as necessary to the health of persons, by
restricting emissions during periods of air pollution emergencies. For
these reasons, we propose to find that Maine's submittal and certain
state statutes and regulations provide for authority comparable to that
provided to the Administrator in CAA Sec. 303.
Section 110(a)(2)(G) also requires that, for any NAAQS, Maine have
an approved contingency plan for any Air Quality Control Region (AQCR)
within the state that is classified as Priority I, IA, or II. See 40
CFR 51.152(c). A contingency plan is not required if the entire state
is classified as Priority III for a particular pollutant. Id. All AQCRs
in Maine are classified as Priority III areas for NO2 and
ozone, pursuant to 40 CFR 52.1021. Consequently, as relevant to this
proposed rulemaking action, Maine's SIP does not need to contain an
emergency contingency plan meeting the specific requirements of 51.152
with respect to NO2 and ozone.
Maine does, however, as a matter of practice, post on the internet
daily forecasted ozone levels through the EPA AIRNOW and EPA
ENVIROFLASH systems. Information regarding these two systems is
available on EPA's website at www.airnow.gov. Notices are sent out to
ENVIROFLASH participants when levels are forecast to exceed the current
8-hour ozone standard. In addition, when levels are expected to exceed
the ozone standard in Maine, the media are alerted via a press release,
and the National Weather Service (NWS) is alerted to issue an Air
Quality Advisory through the normal NWS weather alert system. These
actions are similar to the notification and communication requirements
of 40 CFR 51.152.
EPA proposes that Maine meets the applicable infrastructure SIP
requirements for section 110(a)(2)(G), including contingency-plan
requirements, for the 2015 ozone NAAQS.
[[Page 6599]]
H. Section 110(a)(2)(H)--Future SIP Revisions
This section requires that a state's SIP provide for revision from
time to time as may be necessary to take account of changes in the
NAAQS or availability of improved methods for attaining the NAAQS and
whenever EPA finds that the SIP is substantially inadequate.
Maine's infrastructure submittal references 38 MRSA Sec. 581,
``Declaration of findings and intent,'' which characterizes the state's
laws regarding the Protection and Improvement of Air as an exercise of
``the police power of the State in a coordinated state-wide program to
control present and future sources of emission of air contaminants to
the end that air polluting activities of every type shall be regulated
in a manner that reasonably insures the continued health, safety and
general welfare of all of the citizens of the State; protects property
values and protects plant and animal life.''
In addition, we note that Maine DEP is required by statute to
``prevent, abate and control the pollution of the air[, to] preserve,
improve and prevent diminution of the natural environment of the
State[, and to] protect and enhance the public's right to use and enjoy
the State's natural resources.'' See 38 MRSA Sec. 341-A(1).
Furthermore, DEP is authorized to ``adopt, amend or repeal rules and
emergency rules necessary for the interpretation, implementation and
enforcement of any provision of law that the department is charged with
administering.'' Id. Sec. 341-H; see also id. Sec. 585-A (recognizing
DEP's rulemaking authority to propose SIP revisions). These statutes
give Maine DEP the power to revise the Maine SIP from time to time as
may be necessary to take account of changes in the NAAQS or the
availability of improved methods for attaining the NAAQS and whenever
the EPA finds that the SIP is substantially inadequate. Therefore, EPA
proposes that Maine meets the infrastructure SIP requirements of CAA
section 110(a)(2)(H) with respect to the 2015 ozone NAAQS.
I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan Revisions
Under Part D
Section 110(a)(2)(I) provides that each plan or plan revision for
an area designated as a nonattainment area shall meet the applicable
requirements of part D of the CAA. EPA interprets section 110(a)(2)(I)
to be inapplicable to the infrastructure SIP process because specific
SIP submissions for designated nonattainment areas, as required under
part D, are subject to a different submission schedule under subparts 2
through 5 of part D, extending as far as 10 years following area
designations for some elements, whereas infrastructure SIP submissions
are due within three years after adoption or revision of a NAAQS.
Accordingly, EPA takes action on part D attainment plans through
separate processes.
J. Section 110(a)(2)(J)--Consultation With Government Officials; Public
Notifications; Prevention of Significant Deterioration; Visibility
Protection
Section 110(a)(2)(J) of the CAA requires that each SIP ``meet the
applicable requirements of section 121 of this title (relating to
consultation), section 127 of this title (relating to public
notification), and part C of this subchapter (relating to PSD of air
quality and visibility protection).'' The evaluation of the submission
from Maine with respect to these requirements is described below.
Sub-Element 1: Consultation With Government Officials
Pursuant to CAA section 121, a state must provide a satisfactory
process for consultation with local governments and Federal Land
Managers (FLMs) in carrying out its NAAQS implementation requirements.
Maine 38 MRSA Sec. 341-A(1) authorizes Maine DEP to ``prevent,
abate and control the pollution of the air[,] improve and prevent
diminution of the natural environment of the State[,] protect and
enhance the public's right to use and enjoy the State's natural
resources and . . . educate the public on natural resource use,
requirements and issues.'' Maine state law further provides that one of
the purposes of the BEP is ``to provide for credible, fair and
responsible public participation in department decisions,'' 38 MRSA
Sec. 341-B, and authorizes it to ``cooperate with other state or
federal departments or agencies to carry out'' its responsibilities,
id. Sec. 341-F(6). In addition, 06-096 CMR Chapter 115, Sec.
IX(E)(3), which was approved by EPA on March 23, 1993, requires DEP to
provide notice to relevant municipal officials and FLMs, among others,
of DEP's preparation of a draft permit for a new or modified source.
See 58 FR 15422.
In addition, with respect to area reclassifications to Class I, II,
or III for PSD purposes, the DEP is required to offer an opportunity
for a public hearing and to consult with appropriate FLMs. See 38 MRSA
Sec. 583-B; and 06-096 CMR Chapter 114, Sec. 1(E). Maine's
Transportation Conformity rule at 06-096 CMR Chapter 139 also provides
procedures for interagency consultation, resolution of conflicts, and
public consultation and notification. Finally, the Maine Administrative
Procedure Act (Maine Revised Statutes Title 5, Chapter 375, subchapter
2) requires notification and provision of comment opportunities to all
parties affected by proposed regulations. All SIP revisions undergo
public notice and opportunity for hearing, which allows for comment by
the public, including local governments. EPA proposes that Maine meets
the infrastructure SIP requirements of this portion of section
110(a)(2)(J) for the 2015 ozone NAAQS.
Sub-Element 2: Public Notification
Pursuant to CAA section 127, states must notify the public if NAAQS
are exceeded in an area, advise the public of health hazards associated
with exceedances, and enhance public awareness of measures that can be
taken to prevent exceedances and of ways in which the public can
participate in regulatory and other efforts to improve air quality.
As mentioned above, 38 MRSA Sec. 341-A(1) authorizes Maine DEP to,
among other things, ``educate the public on natural resource use,
requirements and issues.'' To that end, the DEP issues press releases
and posts warnings on its website advising people what they can do to
help prevent NAAQS exceedances and avoid adverse health effects on poor
air quality days. In addition, the Maine DEP website includes near
real-time air quality data, and a record of historical data. Air
quality forecasts are distributed daily via email to interested
parties. Air quality alerts are sent by email to a large number of
affected parties, including the media. Alerts include information about
the health implications of elevated pollutant levels and list actions
to reduce emissions and to reduce the public's exposure. Also, Air
Quality Data Summaries of the year's air quality monitoring results are
issued annually and posted on the Maine DEP website. The state is also
an active partner in EPA's AirNow and EnviroFlash air quality alert
programs.
EPA proposes that Maine meets the infrastructure SIP requirements
of this portion of section 110(a)(2)(J) for the 2015 ozone NAAQS.
Sub-Element 3: PSD
EPA has already discussed Maine's PSD program in the context of
infrastructure SIPs in the paragraphs addressing section 110(a)(2)(C)
and 110(a)(2)(D)(i)(II) and determined that it satisfies the
requirements of EPA's PSD implementation rules. Therefore, the SIP also
satisfies the PSD sub-element of
[[Page 6600]]
section 110(a)(2)(J) for the 2015 ozone NAAQS. EPA proposes to approve
the SIP for the PSD sub-element of section 110(a)(2)(J) for the 2015
ozone NAAQS.
Sub-Element 4: Visibility Protection
States are subject to visibility and regional haze program
requirements under part C of the CAA (which includes sections 169A and
169B). In the event of the establishment of a new NAAQS, however, the
visibility and regional haze program requirements under part C do not
change. Thus, as noted in EPA's 2013 memorandum, we find that there is
no new visibility obligation ``triggered'' under section 110(a)(2)(J)
when a new NAAQS becomes effective. In other words, the visibility
protection requirements of section 110(a)(2)(J) are not germane to
infrastructure SIPs for the 2015 ozone NAAQS. Therefore, we are not
proposing action on this sub-element.
K. Section 110(a)(2)(K)--Air Quality Modeling/Data
Section 110(a)(2)(K) of the Act requires that a SIP provide for the
performance of such air quality modeling as the EPA Administrator may
prescribe for the purpose of predicting the effect on ambient air
quality of any emissions of any air pollutant for which EPA has
established a NAAQS, and the submission, upon request, of data related
to such air quality modeling. EPA has published modeling guidelines at
40 CFR part 51, Appendix W, for predicting the effects of emissions of
criteria pollutants on ambient air quality. EPA also recommends in the
2013 memorandum that, to meet section 110(a)(2)(K), a state submit or
reference the statutory or regulatory provisions that provide the air
agency with the authority to conduct such air quality modeling and to
provide such modeling data to EPA upon request.
Maine state law implicitly authorizes Maine DEP to perform air
quality modeling and provide such modeling data to EPA upon request.
See 38 MRSA Sec. Sec. 341-A(1), 581, 591-B. In addition, EPA-approved
06-096 CMR Chapter 115, ``Major and Minor Source Air Emissions License
Regulations,'' and 06-096 CMR Chapter 140 Part 70, ``Air Emission
License Regulations,'' provide that any modeling required for pre-
construction permits and operating permits for minor and major sources
be performed consistent with EPA-prescribed modeling guidelines at 40
CFR part 51, appendix W. Chapter 115 also requires that applicants
submit data related to modeling to Maine DEP. See 06-096 CMR chapter
115, Sec. VII.E. Consequently, the SIP provides for such air quality
modeling as the Administrator has prescribed and for the submission,
upon request, of data related to such modeling.
In its infrastructure submittal, DEP also cites 06-096 CMR Chapter
116, ``Prohibited Dispersion Techniques,'' which includes regulations
applicable to the State's air quality modeling consistent with federal
requirements concerning stack height and other dispersion techniques,
such as merging of plumes. These regulations also define the area
surrounding the source where ambient air quality standards do not have
to be met. Maine also collaborates with the Ozone Transport Commission
(OTC) and the Mid-Atlantic Regional Air Management Association and EPA
in order to perform large-scale urban air shed modeling for ozone if
necessary.
EPA proposes that Maine meets the requirements of section
110(a)(2)(K) for the 2015 ozone NAAQS.
L. Section 110(a)(2)(L)--Permitting Fees
This section requires SIPs to mandate that each major stationary
source pay permitting fees to cover the costs of reviewing, approving,
implementing, and enforcing a permit.
Maine implements and operates a Title V permit program, see 38 MRSA
Sec. 353-A; 06-096 CMR Chapter 140, which was approved by EPA on
October 18, 2001, see 66 FR 52874. To gain this approval, Maine
demonstrated the ability to collect sufficient fees to run the program.
See 61 FR 49289 (September 19, 1996). Maine also notes in its
infrastructure submittal that the costs of all CAA permitting,
implementation, and enforcement for new or modified sources are covered
by Title V fees, which are set by Maine DEP. See 38 MRSA Sec. Sec.
353-A, 352(2)(E). Therefore, EPA proposes that Maine meets the
infrastructure SIP requirements of section 110(a)(2)(L) for the 2015
ozone NAAQS.
M. Section 110(a)(2)(M)--Consultation/Participation by Affected Local
Entities
To satisfy Element M, states must provide for consultation with,
and participation by, local political subdivisions affected by the SIP.
Maine Administrative Procedure Act, 5 MRSA Chapter 375, requires public
notice of all SIP revisions prior to their adoption, which allows for
comment by the public, including local political subdivisions. In
addition, Maine cites 38 MRSA Sec. 597, ``Municipal air pollution
control,'' which provides that municipalities are not preempted from
studying air pollution and adopting and enforcing ``air pollution
control and abatement ordinances'' that are more stringent than those
adopted by DEP or that ``touch on matters not dealt with'' by state
law. Finally, Maine cites Chapter 9 of Maine's initial SIP, which was
approved on May 31, 1972 and contains intergovernmental cooperation
provisions. See 37 FR 10842.
EPA proposes that Maine meets the infrastructure SIP requirements
of section 110(a)(2)(M) with respect to the 2015 ozone NAAQS.
N. Maine Regulations Submitted for Incorporation Into the SIP
As noted under sections 110(a)(2)(A) and (E) above, Maine submitted
revisions to a regulation and to a statute for approval into the Maine
SIP. On May 22, 2019, Maine submitted a SIP revision containing Maine's
updated Chapter 110, ``Ambient Air Quality Standards.'' EPA is
proposing to approve this revised regulation into the Maine SIP in
order to update Maine's ambient air quality standards to be consistent
with the 2015 ozone and 2012 PM2.5, and to align the rules
governing the Maine ambient air quality standards to provide
consistency with the federal NAAQS.
On September 4, 2019, to meet conflict-of-interest requirements of
section 110(a)(2)(E) for the 2015 ozone NAAQS, as well as for previous
infrastructure submittals for other NAAQS, Maine submitted Maine Public
Law 2019, Chapter 180 amending 38 MRS Sections 341-C(2) and 341-C(8),
effective September 19, 2019; and 38 MRS Section 341-A(3)(D), effective
June 15, 2011. EPA is proposing to approve these conflict-of-interest
provisions into the Maine SIP.
III. EPA's Evaluation of Maine's Negative Declaration for the Oil and
Gas Industry for the 2008 and 2015 Standards
On May 18, 2020, Maine submitted a negative declaration for the
2016 Oil and Natural Gas Industry CTG for the 2008 and 2015 ozone
standards. The term ``negative declaration'' means that the state has
explored whether any facilities subject to the applicability
requirements of the CTG exist within the state and concluded that there
are no such sources within its borders. The negative declaration means
that Maine has no applicable stationary sources of VOC that are covered
by this CTG. This is consistent with EPA's understanding of where
sources subject to the Oil and Natural Gas Industry CTG are located
based on EPA data resources of industrial activity within the United
States, such as the National Emissions Inventory (NEI) database of
sources of air pollution, which is available at:
[[Page 6601]]
https://www.epa.gov/air-emissions-inventories/national-emissions-inventory-nei. We also note that EPA Region 1 worked with Maine, and
EPA headquarters' technical experts on the CTG, to review the
applicability criteria of EPA's 2016 Oil and Gas CTG to assist Maine
with its determination. Therefore, we are proposing to approve Maine's
negative declaration into the SIP.
IV. Proposed Action
EPA is proposing to approve most of the elements of the
infrastructure SIP submitted by Maine on February 14, 2020, for the
2015 ozone NAAQS. Today's action does not include the ``good neighbor''
provisions (i.e., section 110(a)(2)(D)(i)), also known as a state's
Transport SIP. Maine's Transport SIP for the 2015 ozone NAAQS will be
addressed in a future action.
EPA's proposed action regarding each infrastructure SIP requirement
for the 2015 ozone NAAQS is contained in Table 1 below.
Table 1--Proposed Action on New Hampshire's Infrastructure SIP Submittal
for the 2015 Ozone NAAQS
------------------------------------------------------------------------
2015 ozone
Element NAAQS
------------------------------------------------------------------------
(A): Emission limits and other control measures........ A
(B): Ambient air quality monitoring and data system.... A
(C)1: Enforcement of SIP measures...................... A
(C)2: PSD program for major sources and major A
modifications.........................................
(C)3: PSD program for minor sources and minor A
modifications.........................................
(D)1: Contribute to nonattainment/interfere with No action
maintenance of NAAQS..................................
(D)2: PSD.............................................. A
(D)3: Visibility Protection............................ A
(D)4: Interstate Pollution Abatement................... A
(D)5: International Pollution Abatement................ A
(E)1: Adequate resources............................... A
(E)2: State boards..................................... A
(E)3: Necessary assurances with respect to local NA
agencies..............................................
(F): Stationary source monitoring system............... A
(G): Emergency power................................... A
(H): Future SIP revisions.............................. A
(I): Nonattainment area plan or plan revisions under +
part D................................................
(J)1: Consultation with government officials........... A
(J)2: Public notification.............................. A
(J)3: PSD.............................................. A
(J)4: Visibility protection............................ +
(K): Air quality modeling and data..................... A
(L): Permitting fees................................... A
(M): Consultation and participation by affected local A
entities..............................................
------------------------------------------------------------------------
In the above table, the key is as follows:
A: Approve.
+: Not germane to infrastructure SIPs.
No action: EPA is taking no action on this infrastructure requirement.
NA: Not applicable.
EPA also is proposing to approve, and incorporate into the Maine
SIP, the following Regulation, submitted on May 28, 2019, and Statutes,
submitted on September 4, 2019:
06-096 CMR Chapter 110, ``Ambient Air Quality Standards,''
effective March 27, 2019.
Maine Public Law 2019, Chapter 180 amending 38 MRS Sections 341-
C(2) and 341-C(8) (except 341-C(8)A), effective September 19, 2019.
Maine Public Law 2011, Chapter 357 amending 38 MRS Section 341-
A(3)(D), effective June 15, 2011.
In addition, we are proposing to convert to full approvals previous
conditional approvals of section 110(a)(2)(E) in Maine's infrastructure
SIPs for the 2008 ozone; 2008 Pb; 2010 NO2; 2010
SO2; and 1997, 2006, and 2012 PM2.5 NAAQS, as
well as previous conditional approvals of section 110(a)(2)(A) in
Maine's infrastructure SIPS for the 1997 and 2006 PM2.5.
Finally, we are proposing to approve a negative declaration for
EPA's 2016 CTG entitled ``Control Techniques Guidelines for the Oil and
Natural Gas Industry'' for the 2008 and 2015 ozone standards into the
Maine SIP.
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 comments
to this proposed rule by following the instructions listed in the
ADDRESSES section of this Federal Register.
IV. Incorporation by Reference
In this rule, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference amendments to Maine's regulation Chapter 110, Ambient Air
Quality Standards, and conflict-of-interest provisions in Maine's 38
MRSA Section 341. EPA has made, and will continue to make, these
documents generally available through https://www.regulations.gov and
at the EPA Region 1 Office (please contact the person identified in the
FOR FURTHER INFORMATION CONTACT section of this preamble for more
information).
V. 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 proposed action merely approves state law as meeting
Federal requirements and does not
[[Page 6602]]
impose additional requirements beyond those imposed by state law. For
that reason, this proposed 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);
Is not expected to be an Executive Order 13771 regulatory
action because this action is not significant under Executive Order
12866;
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).
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: December 2, 2020.
Dennis Deziel,
Regional Administrator, EPA Region 1.
[FR Doc. 2021-00458 Filed 1-21-21; 8:45 am]
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