[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).
[[Page 40794]]
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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