[Federal Register Volume 86, Number 143 (Thursday, July 29, 2021)]
[Proposed Rules]
[Pages 40793-40796]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16116]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2021-0381; FRL-8782-01-R1]


Air Plan Approval; Maine; Chapter 100 Definitions and Chapter 113 
Growth Offset Regulations

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 amends the definition of ``Ozone 
Transport Region'' in the State's Chapter 100 Definitions Regulation 
and revises language in the State's Chapter 113 Growth Offset 
Regulation regarding applicability of Nonattainment New Source Review 
in areas that, at a future date, may not be within the Ozone Transport 
Region. This action is being taken under the Clean Air Act (CAA).

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DATES: Written comments must be received on or before August 30, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2021-0381 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: John Creilson, Air Quality Branch, 
U.S. Environmental Protection Agency, EPA Region 1, 5 Post Office 
Square--Suite 100, (Mail code 05-2), Boston, MA 02109, tel. (617) 918-
1688, email [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. Background
II. Summary and Evaluation of State Submittal
    a. Chapter 100
    b. Chapter 113
III. Description of Codification Issues in Maine's SIP
IV. Proposed Action
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews

I. Background

    On February 10 and 24, 2021, the Maine Department of Environmental 
Protection (ME DEP) submitted two revisions to its State Implementation 
Plan (SIP) consisting of an amendment to the existing Code of Maine 
Rules (C.M.R.) Chapter 113 Growth Offset Regulation (Chapter 113) and 
C.M.R. Chapter 100 Definitions Regulation (Chapter 100), respectively, 
both of which were previously approved into the Maine SIP.
    Pursuant to section 184 of the CAA, the State of Maine is included 
within the Ozone Transport Region (OTR). On February 24, 2020, the 
State of Maine submitted a petition to the EPA under section 176A of 
the CAA to remove certain portions of the State from the OTR. On May 3, 
2021, EPA published in the Federal Register a proposal to grant Maine's 
request. See 86 FR 23309. Following Maine's original February 24, 2020 
CAA section 176A request, EPA notified ME DEP that amending the 
definition of ``Ozone Transport Region'' in the Department's Chapter 
100 Definitions Regulation was also necessary to facilitate processing 
of the Department's petition because the current SIP-approved 
definition includes language referring to the entire state of Maine as 
being within the OTR. The State submitted a revision to its existing 
SIP-approved OTR definition on February 24, 2021. Maine submitted on 
March 23, 2021 a clarification letter, instructing EPA to retain all 
existing language in the SIP-approved version of Chapter 100, except 
that the existing definition of ``Ozone Transport Region'' should be 
removed and be replaced by the updated definition of ``Ozone Transport 
Region.''
    Additionally, as a result of Maine's OTR opt-out request, language 
in Chapter 113 of the approved SIP was required to be updated. The 
State submitted a revision to the existing SIP-approved Chapter 113 
sections 1 and 2 on February 10, 2021. ME DEP's March 23, 2021 
clarification letter similarly instructs EPA to retain all existing 
language already in the SIP-approved version of Chapter 113, except for 
the updated language included in the State's SIP submittal.

II. Summary and Evaluation of State Submittal

a. Chapter 100

    The proposed change amends the definition of the ``Ozone Transport 
Region'' in the Chapter 100 Definitions Regulation by changing the last 
sentence from ``. . . For the State of Maine, the Ozone Transport 
Region includes all of the counties in the State'' to ``. . . For the 
State of Maine, the Ozone Transport Region includes all of Maine except 
for those portions of the State specifically removed from the OTR 
pursuant to CAA 176A.''
    EPA has reviewed Maine's February 24, 2021, submittal of a revision 
to Chapter 100 Definitions Regulation and determined that it represents 
an approvable revision to the version previously approved into the 
Maine SIP. The revised definition does not relieve the State of OTR 
obligations until the CAA 176A petition is approved by EPA. In the 
event EPA does not finalize its proposed approval of Maine's CAA 176A 
request, no change to Maine's status as being within the OTR will 
result from this SIP revision.

b. Chapter 113

    The proposed Chapter 113 changes are as follows: (1) Replace the 
previous section 1, Applicability, of the approved SIP, and (2) add new 
language codified as 3(E)(1)(c)(ii) in Maine's Chapter 113 after 
2(C)(3)(b) of Chapter 113 currently approved into the SIP. The updated 
section 1 is revised as follows: ``The following types of stationary 
sources that seek to locate or expand within the geographical bounds of 
a nonattainment area, would have a significant impact in a 
nonattainment area, or seek to locate or expand within the Ozone 
Transport Region (concerning ozone precursor pollutants only) must 
obtain offset credits as provided for in this Chapter.'' The amended 
section continues by discussing the four types of stationary sources 
impacted. Section 2 was updated by adding the following to the end of 
section 2(C)(3)(b): ``Locating In an Ozone Attainment Area in the OTR: 
For a new major source or major modification subject to this Chapter 
locating in an ozone attainment area in the OTR, the source from which 
the offset credits are being obtained must be located in the OTR and 
may be located within another ozone attainment area or within an ozone 
nonattainment area if approved by the Department and EPA. Sources 
locating in an ozone attainment area within the OTR must obtain VOC 
offset credits at a ratio of 1.15 to 1. A new major source or major 
modification subject to this Chapter locating in an

[[Page 40795]]

ozone attainment area that does not have a NOX waiver under 
section 182(f) of the Clean Air Act must obtain NOX offset 
credits at a ratio of 1.15 to 1.''
    EPA has reviewed Maine's February 10, 2021, submittal of a revision 
to Chapter 113 Growth Offset Regulation and determined that it 
represents an approvable revision to the version previously approved 
into the Maine SIP. The revisions clarify that offsets must be obtained 
from within the OTR, which is significant in the event EPA approves 
Maine's CAA section 176A request. Furthermore, the new language 
reinforces the notion that offsets being obtained from another ozone 
attainment or nonattainment area in the OTR require approval by EPA and 
ME DEP. The CAA and Maine's existing SIP-approved Chapter 113 contain 
provisions that require a demonstration of contribution when offsets 
are allocated from areas outside that of the area where the new major 
source or major modification will be located. See CAA Sec.  
173(c)(1)(a) and (b) and Maine SIP, Chapter 113(3)(a). The addition of 
this new language clarifies the approval process needed in these 
instances. Lastly, the revised text clarifies how NOX offset 
requirements should be applied in areas where a CAA section 182(f) 
NOX waiver is not approved.\1\
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    \1\ Maine DEP has not sought a NOX waiver for the 
2015 ozone National Ambient Air Quality Standard (NAAQS), however, 
EPA has approved NOX waivers under CAA section 182(f) 
previous ozone NAAQS. See 60 FR 66748 (December 26, 1995), 71 FR 
5791 (February 3, 2006), and 79 FR 43945 (June 29, 2014). 
Nonetheless, without an approved NOX waiver for the 2015 
ozone NAAQS, all areas in Maine and within the OTR require 
NOX offsets when subject to those requirements.
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III. Description of Codification Issues in Maine's SIP

    The State of Maine's regulations in Chapter 113 have been amended 
in the past under state law after they were originally approved into 
the SIP. Not all of those state law amendments were submitted to EPA as 
formal SIP revisions. Those ``state-only'' amendments resulted in new 
text being added, existing text being rearranged, and, in some cases, 
changes to how Maine regulations are codified. Due to such ``state-
only'' amendments to Chapter 113, there are instances where the state 
regulation being submitted for approval into the SIP at this time does 
not mesh precisely within the existing codification structure of the 
Maine SIP. As a matter of substantive legal requirements, however, the 
regulations approved into the Maine SIP, including those we are 
approving today, are harmonious, clear, and enforceable.
    Below, we describe exactly how each definition and provision we are 
approving into Maine's SIP through this document will be incorporated 
into the SIP.
    Section 1 of Chapter 113 will be replaced with a new Section 
1(A)(1). This change is straightforward and does not present any 
codification issues.
    In addition, to the change to Section 1, new provisions codified in 
state law as Section 3(E)(1)(c)(ii) will be added to the SIP and will 
be placed after already existing SIP provisions in section 2(C)(3)(b). 
The fact that this codification does not numerically follow a 
consistent pattern does not affect the substantive validity or 
enforceability of the newly incorporated provisions. As noted above, 
this codification issue arises as a result of changes to state law that 
were never submitted to EPA as SIP revisions.
    Finally, the definition of Ozone Transport Region in Chapter 100 is 
being amended to reflect Maine's petition to the EPA Administrator 
relating to the State's interest in partially removing certain areas of 
the State from the Ozone Transport Region. Due to prior changes to 
Chapter 100 (Definitions) that were not approved into the SIP, the new 
definition of Ozone Transport Region will be codified as definition 
number 111. The prior definition of Ozone Transport Region in the SIP 
was codified as definition 104. Definition 104 will be removed from the 
SIP and the new definition of Ozone Transport Region will be added to 
the SIP as definition 111. We note that the current SIP has a 
definition of ``Part 70 license'' that is numbered 111. The new 
definition of Ozone Transport Region will be added to the SIP with the 
same number (111) as the definition of ``Part 70 license.'' The fact 
that there will be two definitions in the SIP identified as definition 
111 will not affect the substantive effect or the enforceability of 
either term.

IV. Proposed Action

    EPA is proposing to approve the revision to Chapter 113 and the 
revision to Chapter 100 submitted by Maine on February 10 and 24, 2021, 
respectively. These SIP revisions satisfy the requirements of section 
110(l) of the Clean Air Act because the plan revisions will not 
interfere with any applicable requirement concerning attainment or 
reasonable further progress or any other requirement of the Clean Air 
Act. EPA is soliciting public comments on the issues discussed in this 
notice or on other relevant matters. These comments will be considered 
before taking final action. Interested parties may participate in the 
Federal rulemaking procedure by submitting written comments to this 
proposed rule by following the instructions listed in the ADDRESSES 
section of this Federal Register.

V. 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, the EPA is proposing to incorporate by 
reference revisions to Maine's Chapter 100 Definitions Regulation, as 
effective on February 9, 2021, and Chapter 113 Growth Offset 
Regulation, as effective on January 14, 2019. The 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).

VI. 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 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);
     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

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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, Incorporation by 
reference, Nitrogen dioxide, Nitrogen oxides, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: July 22, 2021.
Deborah Szaro,
Acting Regional Administrator, EPA Region 1.
[FR Doc. 2021-16116 Filed 7-28-21; 8:45 am]
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