Air Plan Approval; Maine; Infrastructure State Implementation Plan Requirements for the 2012 PM2.5, 39957-39970 [2018-17247]
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Federal Register / Vol. 83, No. 156 / Monday, August 13, 2018 / Proposed Rules
Authority: 39 U.S.C. 503; 3633.
§ 3015.7
Standard for compliance.
*
*
*
*
*
(c)(1) Annually, on a fiscal year basis,
the appropriate share of institutional
costs to be recovered from competitive
products collectively, at a minimum,
will be calculated using the following
formula:
ASt∂1 = ASt * (1 + %DCCMt¥1 +
CGDt¥1)
Where,
AS = Appropriate Share, expressed as a
percentage and rounded to one decimal
place
CCM = Competitive Contribution Margin
CGD = Competitive Growth Differential
t = Fiscal Year
If t = 0 = FY 2007, AS = 5.5 percent
(2) The Commission shall, as part of
each Annual Compliance
Determination, calculate and report
competitive products’ appropriate share
for the upcoming fiscal year using the
formula set forth in paragraph (c)(1) of
this section.
[FR Doc. 2018–17221 Filed 8–10–18; 8:45 am]
BILLING CODE 7710–FW–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R01–OAR–2018–0138; FRL–9981–85–
Region 1]
Air Plan Approval; Maine;
Infrastructure State Implementation
Plan Requirements for the 2012 PM2.5
NAAQS
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
elements of a State Implementation Plan
(SIP) submission from Maine that
addresses the infrastructure
requirements of the Clean Air Act (CAA
or Act) for the 2012 fine particle (PM2.5)
National Ambient Air Quality Standard
(NAAQS). EPA is also proposing to
conditionally approve one sub-element
of Maine’s infrastructure SIP. 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 with respect to this
NAAQS under the CAA.
DATES: Comments must be received on
or before September 12, 2018.
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SUMMARY:
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Submit your comments,
identified by Docket ID No. EPA–R01–
OAR–2018–0138 at https://
www.regulations.gov, or via email to
conroy.dave@epa.gov. 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
www.epa.gov/dockets/commenting-epadockets. Publicly available docket
materials are available at https://
www.regulations.gov or at the U.S.
Environmental Protection Agency, EPA
New England Regional Office, Office of
Ecosystem Protection, Air Quality
Planning Unit, 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.
FOR FURTHER INFORMATION CONTACT:
Alison C. Simcox, Air Quality Planning
Unit, Air Programs Branch, U.S.
Environmental Protection Agency,
Region 1, 5 Post Office Square, Suite
100 (Mail code OEP05–2), Boston, MA
02109—3912, tel. (617) 918–1684;
simcox.alison@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA.
ADDRESSES:
2. Amend § 3015.7 by revising
paragraph (c) to read as follows:
■
Table of Contents
I. Background and Purpose
A. What Maine SIP submission does this
rulemaking address?
B. What is the scope of this rulemaking?
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II. What guidance is EPA using to evaluate
this SIP submission?
III. EPA’s Review
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
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. Background and Purpose
A. What Maine SIP submission does this
rulemaking address?
This rulemaking addresses a July 6,
2016 submission from the Maine
Department of Environmental Protection
(Maine DEP) regarding the infrastructure
SIP requirements of the CAA for the
2012 fine particle (PM2.51) National
Ambient Air Quality Standard
(NAAQS). The primary, health-based
annual standard is set at 12.0
micrograms per cubic meter (mg/m3) and
the 24-hour standard is set at 35 mg/m3.
See 78 FR 3086. Under sections
110(a)(1) and (2) of the CAA, states are
required to provide infrastructure SIP
submissions to ensure that state SIPs
provide for implementation,
maintenance, and enforcement of the
NAAQS, including the 2012 PM2.5
NAAQS. On March 1, 2018, Maine DEP
submitted a letter providing clarifying
information for several of its
infrastructure SIP submittals. In a July
17, 2018 email, Maine DEP asked EPA
to apply this letter to the infrastructure
SIP submittal for the 2012 PM2.5
NAAQS, as well. The information in the
letter and email (both included in the
docket for this rulemaking) is mainly
applicable to Elements E, F, G, and K.
1 PM
2.5 refers to particulate matter of 2.5 microns
or less in diameter, often referred to as ‘‘fine’’
particles.
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B. What is the scope of this rulemaking?
EPA is acting on a SIP submission
from Maine DEP that addresses the
infrastructure requirements of CAA
sections 110(a)(1) and 110(a)(2) for the
2012 PM2.5 NAAQS.
The requirement for states to make a
SIP submission of this type arises out of
CAA sections 110(a)(1) and 110(a)(2).
Pursuant to these sections, each state
must submit a SIP that provides for the
implementation, maintenance, and
enforcement of each primary or
secondary NAAQS. States must make
such SIP submission ‘‘within 3 years (or
such shorter period as the Administrator
may prescribe) after the promulgation of
a new or revised NAAQS.’’ This
requirement is triggered by the
promulgation of a new or revised
NAAQS and is not conditioned upon
EPA’s taking any other action. Section
110(a)(2) includes the specific elements
that ‘‘each such plan’’ must address.
EPA commonly refers to such SIP
submissions made for the purpose of
satisfying the requirements of CAA
sections 110(a)(1) and 110(a)(2) as
‘‘infrastructure SIP’’ submissions.
Although the term ‘‘infrastructure SIP’’
does not appear in the CAA, EPA uses
the term to distinguish this particular
type of SIP submission from
submissions that are intended to satisfy
other SIP requirements under the CAA,
such as ‘‘nonattainment SIP’’ or
‘‘attainment plan SIP’’ submissions to
address the nonattainment planning
requirements of part D of title I of the
CAA.
This rulemaking will not cover three
substantive areas that are not integral to
acting on a state’s infrastructure SIP
submission: (i) Existing provisions
related to excess emissions during
periods of start-up, shutdown, or
malfunction at sources (‘‘SSM’’
emissions) that may be contrary to the
CAA and EPA’s policies addressing
such excess emissions; (ii) existing
provisions related to ‘‘director’s
variance’’ or ‘‘director’s discretion’’ that
purport to permit revisions to SIPapproved emissions limits with limited
public process or without requiring
further approval by EPA, that may be
contrary to the CAA (‘‘director’s
discretion’’); and, (iii) existing
provisions for Prevention of Significant
Deterioration (PSD) programs that may
be inconsistent with current
requirements of EPA’s ‘‘Final New
Source Review (NSR) Improvement
Rule,’’ 67 FR 80186 (December 31,
2002), as amended by 72 FR 32526 (June
13, 2007) (‘‘NSR Reform’’). Instead, EPA
has the authority to address each one of
these substantive areas separately. A
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detailed history, interpretation, and
rationale for EPA’s approach to
infrastructure SIP requirements can be
found in EPA’s May 13, 2014, proposed
rule entitled, ‘‘Infrastructure SIP
Requirements for the 2008 Lead
NAAQS’’ in the section, ‘‘What is the
scope of this rulemaking?’’ See 79 FR
27241 at 27242–45.
II. What guidance is EPA using to
evaluate this SIP submission?
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
guidance). EPA has issued additional
guidance documents and memoranda,
including a September 13, 2013,
memorandum entitled ‘‘Guidance on
Infrastructure State Implementation
Plan (SIP) Elements under Clean Air Act
Sections 110(a)(1) and 110(a)(2)’’ (2013
memorandum).2
With respect to the ‘‘Good Neighbor’’
or interstate transport requirements for
infrastructure SIPs, the most recent
relevant EPA guidance is a
memorandum published on March 17,
2016, entitled ‘‘Information on the
Interstate Transport ‘‘Good Neighbor’’
Provision for the 2012 Fine Particulate
Matter National Ambient Air Quality
Standards under Clean Air Act Section
110(a)(2)(D)(i)(I)’’ (2016 memorandum).
The 2016 memorandum describes EPA’s
past approach to addressing interstate
transport, and provides EPA’s general
review of relevant modeling data and air
quality projections as they relate to the
2012 annual PM2.5 NAAQS. The 2016
memorandum provides information
relevant to EPA Regional office review
of the CAA section 110(a)(2)(D)(i)(I)
‘‘Good Neighbor’’ provision
requirements in infrastructure SIPs with
respect to the 2012 annual PM2.5
NAAQS. This rulemaking considers
information provided in that
memorandum.
III. EPA’s review
EPA is soliciting comment on our
evaluation of Maine’s infrastructure SIP
submission in this notice of proposed
rulemaking. In Maine’s submission, a
detailed list of Maine Laws and
previously SIP-approved Air Quality
Regulations show precisely how the
various components of its EPA2 This memorandum and other referenced
guidance documents and memoranda are included
in the docket for this action.
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approved SIP meet each of the
requirements of section 110(a)(2) of the
CAA for the 2012 PM2.5 NAAQS. The
following review evaluates the state’s
submissions in light of section 110(a)(2)
requirements and relevant EPA
guidance.
A. Section 110(a)(2)(A)—Emission
Limits and Other Control Measures
This section (also referred to in this
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.3 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.
Maine’s infrastructure submittal for
this element cites Maine laws and
regulations that include enforceable
emission limitations and other control
measures, means or techniques, as well
as schedules and timetables for
compliance to meet the applicable
requirements of the CAA. Maine DEP
statutory authority with respect to air
quality is set out in Title 38 of the Maine
Revised Statutes Annotated (‘‘MRSA’’),
Chapter 4, ‘‘Protection and
Improvement of Air.’’ Maine DEP’s
general authority to promulgate
regulations is codified at 38 MRSA
Chapter 2, Subchapter 1, ‘‘Organization
and Powers,’’ 4 and the authority to
establish emission standards and
regulations implementing ambient air
quality standards is contained in 38
MRSA Chapter 4, sections 585 and 585–
A.
The Maine submittal cites two dozen
specific rules that the state has adopted
to control the emissions of criteria
pollutants and precursors, including
PM2.5. A few of these rules, with their
EPA-approval citation, are listed here:
06–096 Code of Maine Regulations
(‘‘CMR’’) Chapter 102, ‘‘Open Burning’’
(73 FR 9459, February 21, 2008);
Chapter 103, ‘‘Fuel Burning Equipment
3 See, e.g., EPA’s final rule on ‘‘National Ambient
Air Quality Standards for Lead.’’ 73 FR 66964,
67034 (November 12, 2008).
4 Maine DEP consists of the Board of
Environmental Protection (‘‘Board’’) and a
Commissioner. 38 MRSA § 341–A(2). In general, the
Board is authorized to promulgate ‘‘major
substantive rules’’ and the Commissioner has
rulemaking authority with respect to rules that are
‘‘not designated as major substantive rules.’’ Id.
§ 341–H.
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Particulate Emission Standard’’ (50 FR
7770, February 26, 1985); Chapter 104,
‘‘Incinerator Particulate Emission
Standard’’ (37 FR 10842, May 31, 1972);
and Chapter 150, ‘‘Control of Emissions
from Outdoor Wood Boilers’’ (April 24,
2012). The Maine regulations listed
above were previously approved into
the Maine SIP by EPA. See 40 CFR
52.1020.
EPA proposes that Maine meets the
infrastructure SIP requirements of
section 110(a)(2)(A) with respect to the
2012 PM2.5 NAAQS. As previously
noted, EPA is not proposing to approve
or disapprove any existing state
provisions or rules related to SSM or
director’s discretion in the context of
section 110(a)(2)(A).
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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 make such data
available to EPA upon request. Each
year, states submit annual air
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 MRSA §§ 341–A(1) and 584–A,
Maine DEP operates an air quality
monitoring network, and EPA approved
the state’s most recent Annual Air
Monitoring Network Plan for PM2.5 on
August 23, 2017.5 Furthermore, Maine
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 DEP meets the
infrastructure SIP requirements of
section 110(a)(2)(B) with respect to the
2012 PM2.5 NAAQS.
5 See EPA approval letter located in the docket for
this action.
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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 the regulation of
construction of new or modified
stationary sources to meet NSR
requirements under 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 DEP identifies the sources of
its authority to enforce the measures it
cites to satisfy Element A (Emission
limits and other control measures) as 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,’’ which include 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 for PM2.5. EPA proposes that
Maine has met the enforcement
requirement of section 110(a)(2)(C) with
respect to the 2012 PM2.5 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. Maine DEP’s EPAapproved 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).
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EPA’s ‘‘Final Rule to Implement the 8Hour 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’’ (Phase 2 Rule)
was published on November 29, 2005
(70 FR 71612). Among other
requirements, the Phase 2 Rule
obligated states to revise their PSD
programs to explicitly identify NOX as
a precursor to ozone. See 70 FR 71679.
This requirement is codified in 40 CFR
51.166, and requires that states submit
SIP revisions incorporating the
requirements of the rule, including
provisions that would treat NOX as a
precursor to ozone provisions. These
SIP revisions were to have been
submitted to EPA by states by June 15,
2007. See 70 FR 71683.
Maine has adopted, and EPA has
approved, rules addressing the changes
to 40 CFR 51.166 required by the Phase
2 Rule, including amending its SIP to
include NOX and VOC as precursor
pollutants to ozone, in order to define
what constitutes a ‘‘significant’’ increase
in actual emissions from a source of air
contaminants. See 81 FR 50353 (August
1, 2016). Therefore, EPA proposes to
approve Maine’s infrastructure SIP
submission for the 2012 PM2.5 NAAQS
with respect to the requirements of the
Phase 2 Rule and the PSD sub-element
of section 110(a)(2)(C).
On May 16, 2008 (73 FR 28321), EPA
issued the Final Rule on the
‘‘Implementation of the New Source
Review (NSR) Program for Particulate
Matter Less than 2.5 Micrometers
(PM2.5)’’ (2008 NSR Rule). The 2008
NSR Rule finalized several new
requirements for SIPs to address sources
that emit direct PM2.5 and other
pollutants that contribute to secondary
PM2.5 formation. One of these
requirements is for NSR permits to
address pollutants responsible for the
secondary formation of PM2.5, otherwise
known as precursors. In the 2008 rule,
EPA identified precursors to PM2.5 for
the PSD program to be SO2 and NOX
(unless the state demonstrates to the
Administrator’s satisfaction or EPA
demonstrates that NOX emissions in an
area are not a significant contributor to
that area’s ambient PM2.5
concentrations). The 2008 NSR Rule
also specifies that VOCs are not
considered to be precursors to PM2.5 in
the PSD program unless the state
demonstrates to the Administrator’s
satisfaction or EPA demonstrates that
emissions of VOCs in an area are
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significant contributors to that area’s
ambient PM2.5 concentrations.
The explicit references to SO2, NOX,
and VOCs as they pertain to secondary
PM2.5 formation are codified at 40 CFR
51.166(b)(49)(i)(b) and 40 CFR
52.21(b)(50)(i)(b). As part of identifying
pollutants that are precursors to PM2.5,
the 2008 NSR Rule also required states
to revise the definition of ‘‘significant’’
as it relates to a net emissions increase
or the potential of a source to emit
pollutants. Specifically, 40 CFR
51.166(b)(23)(i) and 40 CFR
52.21(b)(23)(i) define ‘‘significant’’ for
PM2.5 to mean the following emissions
rates: 10 tons per year (tpy) of direct
PM2.5; 40 tpy of SO2; and 40 tpy of NOX
(unless the state demonstrates to the
Administrator’s satisfaction or EPA
demonstrates that NOX emissions in an
area are not a significant contributor to
that area’s ambient PM2.5
concentrations). The deadline for states
to submit SIP revisions to their PSD
programs incorporating these changes
was May 16, 2011. See 73 FR 28321 at
28341.6
On August 1, 2016 (81 FR 50353),
EPA approved revisions to Maine’s PSD
program that identify SO2 and NOX as
precursors to PM2.5 and revise the state’s
regulatory definition of ‘‘significant’’ for
PM2.5 to mean 10 tons per year (tpy) or
more of direct PM2.5 emissions, 40 tpy
or more of SO2 emissions, or 40 tpy or
more of NOX emissions.
6 EPA notes that on January 4, 2013, the U.S.
Court of Appeals for the D.C. Circuit, in Natural
Resources Defense Council v. EPA, 706 F.3d 428
(DC Cir.), held that EPA should have issued the
2008 NSR Rule in accordance with the CAA’s
requirements for PM10 nonattainment areas (Title I,
part D, subpart 4), and not the general requirements
for nonattainment areas under subpart 1 (Natural
Resources Defense Council v. EPA, No. 08–1250).
As the subpart 4 provisions apply only to
nonattainment areas, EPA does not consider the
portions of the 2008 rule that address requirements
for PM2.5 attainment and unclassifiable areas to be
affected by the court’s opinion. Moreover, EPA does
not anticipate the need to revise any PSD
requirements promulgated by the 2008 NSR rule in
order to comply with the court’s decision.
Accordingly, EPA’s approval of Maine’s
infrastructure SIP as to Elements C, D(i)(II), or J
with respect to the PSD requirements promulgated
by the 2008 implementation rule does not conflict
with the court’s opinion.
The Court’s decision with respect to the
nonattainment NSR requirements promulgated by
the 2008 implementation rule also does not affect
EPA’s action on the present infrastructure action.
EPA interprets the CAA to exclude nonattainment
area requirements, including requirements
associated with a nonattainment NSR program,
from infrastructure SIP submissions due three years
after adoption or revisitation of a NAAQS. Instead,
these elements are typically referred to as
nonattainment SIP or attainment plan elements,
which would be due by the dates statutorily
prescribed under subpart 2 through 5 under part D,
extending as far as 10 years following designations
for some elements.
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The 2008 NSR Rule did not require
states to immediately account for gases
that could condense to form particulate
matter, known as condensables, in PM2.5
and PM10 emission limits in NSR
permits. Instead, EPA determined that
states had to account for PM2.5 and PM10
condensables for applicability
determinations and in establishing
emissions limitations for PM2.5 and
PM10 in PSD permits beginning on or
after January 1, 2011. See 73 FR 28321
at 28334. This requirement is codified
in 40 CFR 51.166(b)(49)(i)(a) and 40
CFR 52.21(b)(50)(i)(a).
Maine’s SIP-approved PSD program
defines PM2.5 and PM10 emissions in
such a manner that gaseous emissions
which would condense under ambient
conditions are treated in an equivalent
manner as required by EPA’s definition
of ‘‘regulated air pollutant’’ in 40 CFR
51.166(b)(49)(i)(a). EPA approved these
definitions into the SIP on August 1,
2016 (81 FR 50353). Consequently, we
propose that the state’s PSD program
adequately accounts for the condensable
fraction of PM2.5 and PM10.
Therefore, we propose to approve
Maine’s infrastructure SIP submittal for
the 2012 PM2.5 NAAQS with respect to
the requirements of the 2008 NSR Rule
and the PSD sub-element of section
110(a)(2)(C).
On October 20, 2010 (75 FR 64864),
EPA issued the final rule on 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)’’ (2010 NSR Rule). This rule
established several components for
making PSD permitting determinations
for PM2.5, including a system of
‘‘increments,’’ which is the mechanism
used to estimate significant
deterioration of ambient air quality for
a pollutant. These increments are
codified in 40 CFR 51.166(c) and 40
CFR 52.21(c). On June 24, 2014 (79 FR
35695), EPA approved PM2.5 increments
in 06–096 CMR Chapter 110 of Maine’s
regulations.
The 2010 NSR Rule also established a
new ‘‘major source baseline date’’ for
PM2.5 as October 20, 2010, and a new
trigger date for PM2.5 of October 20,
2011 in the definition of ‘‘minor source
baseline date.’’ These revisions are
codified in 40 CFR 51.166(b)(14)(i)(c)
and (b)(14)(ii)(c), and 40 CFR
52.21(b)(14)(i)(c) and (b)(14)(ii)(c).
Lastly, the 2010 NSR Rule revised the
definition of ‘‘baseline area’’ to include
a level of significance (SIL) of 0.3
micrograms per cubic meter (mg/m3),
annual average, for PM2.5. This change is
codified in 40 CFR 51.166(b)(15)(i) and
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40 CFR 52.21(b)(15)(i). On August 1,
2016 (81 FR 50353), EPA approved
revisions to the Maine SIP that address
EPA’s 2010 NSR rule. Therefore, with
respect to the 2010 NSR Rule and the
PSD sub-element of section 110(a)(2)(C),
we are proposing to approve Maine’s
infrastructure SIP submittal for the 2012
PM2.5 NAAQS.
With respect to Elements C and J, EPA
interprets the Clean Air Act to require
each state to make an infrastructure SIP
submission for a new or revised NAAQS
that demonstrates that the air agency
has a complete PSD permitting program
meeting the current requirements for all
regulated NSR pollutants. The
requirements of Element D(i)(II) may
also be satisfied by demonstrating the
air agency has a complete PSD
permitting program correctly addressing
all regulated NSR pollutants. Maine has
shown that it currently has a PSD
program in place that covers all
regulated NSR pollutants, including
GHGs.
On June 23, 2014, the United States
Supreme Court issued a decision
addressing the application of PSD
permitting requirements to GHG
emissions. Utility Air Regulatory Group
v. Environmental Protection Agency,
134 S.Ct. 2427. The Supreme Court said
that EPA may not treat GHGs as an air
pollutant for purposes of determining
whether a source is a major source
required to obtain a PSD permit. The
Court also said that EPA could continue
to require that PSD permits, otherwise
required based on emissions of
pollutants other than GHGs, contain
limitations on GHG emissions based on
the application of BACT.
In accordance with the Supreme
Court decision, on April 10, 2015, the
U.S. Court of Appeals for the District of
Columbia Circuit (the D.C. Circuit)
issued an amended judgment vacating
the regulations that implemented Step 2
of the EPA’s PSD and Title V
Greenhouse Gas Tailoring Rule, but not
the regulations that implement Step 1 of
that rule. Step 1 of the Tailoring Rule
covers sources that are required to
obtain a PSD permit based on emissions
of pollutants other than GHGs. Step 2
applied to sources that emitted only
GHGs above the thresholds triggering
the requirement to obtain a PSD permit.
The amended judgment preserves,
without the need for additional
rulemaking by EPA, the application of
the Best Available Control Technology
(BACT) requirement to GHG emissions
from Step 1 or ‘‘anyway’’ sources. With
respect to Step 2 sources, the D.C.
Circuit’s amended judgment vacated the
regulations at issue in the litigation,
including 40 CFR 51.166(b)(48)(v), ‘‘to
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the extent they require a stationary
source to obtain a PSD permit if
greenhouse gases are the only pollutant
(i) that the source emits or has the
potential to emit above the applicable
major source thresholds, or (ii) for
which there is a significant emission
increase from a modification.’’
On August 19, 2015, EPA amended its
PSD and title V regulations to remove
from the Code of Federal Regulations
portions of those regulations that the
D.C. Circuit specifically identified as
vacated. EPA intends to further revise
the PSD and title V regulations to fully
implement the Supreme Court and D.C.
Circuit rulings in a separate rulemaking.
This future rulemaking will include
revisions to additional definitions in the
PSD regulations.
Some states have begun to revise their
existing SIP-approved PSD programs in
light of these court decisions, and some
states may prefer not to initiate this
process until they have more
information about the additional
planned revisions to EPA’s PSD
regulations. EPA is not expecting states
to have revised their PSD programs in
anticipation of EPA’s additional actions
to revise its PSD program rules in
response to the court decisions for
purposes of infrastructure SIP
submissions. Instead, EPA is only
evaluating such submissions to assure
that the state’s program addresses GHGs
consistent with both the court decision,
and the revisions to PSD regulations
that EPA has completed at this time.
On October 5, 2012 (77 FR 49404),
EPA approved revisions to the Maine
SIP that modified Maine’s PSD program
to establish appropriate emission
thresholds for determining which new
stationary sources and modification
projects become subject to Maine’s PSD
permitting requirements for their GHG
emissions. Therefore, EPA has
determined that Maine’s SIP is
sufficient to satisfy Elements C, D(i)(II),
and J with respect to GHGs. The
Supreme Court decision and subsequent
D.C. Circuit judgment do not prevent
EPA’s approval of Maine’s infrastructure
SIP as to the requirements of Element C,
as well as sub-elements D(i)(II), and
J(iii).
For the purposes of this rulemaking
on Maine’s infrastructure SIP, EPA
reiterates that NSR Reform is not in the
scope of these actions.
In summary, we are proposing to
approve Maine’s submittal for this subelement with respect to the 2012 PM2.5
NAAQS.
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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 2012 PM2.5 NAAQS.
We are proposing to find that Maine
has met the requirement to have a SIPapproved minor new source review
permit program as required under
Section 110(a)(2)(C) for the 2012 PM2.5
NAAQS.
D. Section 110(a)(2)(D)—Interstate
Transport.
This section contains a
comprehensive set of air quality
management elements pertaining to the
transport of air pollution with which
states must comply. It covers the
following five topics, categorized as subelements: Sub-element 1, Significant
contribution to nonattainment, and
interference with maintenance of a
NAAQS; Sub-element 2, PSD; Subelement 3, Visibility protection; Subelement 4, Interstate pollution
abatement; and Sub-element 5,
International pollution abatement. Subelements 1 through 3 above are found
under section 110(a)(2)(D)(i) of the Act,
and these items are further categorized
into the four prongs discussed below,
two of which are found within subelement 1. Sub-elements 4 and 5 are
found under section 110(a)(2)(D)(ii) of
the Act and include provisions insuring
compliance with sections 115 and 126
of the Act relating to interstate and
international pollution abatement.
Sub-Element 1: Section
110(a)(2)(D)(i)(I)—Contribute to
Nonattainment (Prong 1) and Interfere
With Maintenance of the NAAQS (Prong
2)
Section 110(a)(2)(D)(i)(I) of the CAA
requires a SIP to prohibit any emissions
activity in the state that will contribute
significantly to nonattainment or
interfere with maintenance of the
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NAAQS in any downwind state. EPA
commonly refers to these requirements
as prong 1 (significant contribution to
nonattainment) and prong 2
(interference with maintenance), or
jointly as the ‘‘Good Neighbor’’ or
‘‘transport’’ provisions of the CAA. This
rulemaking proposes action on the
portions of Maine’s July 6, 2016, SIP
submission that address the prong 1 and
2 requirements with respect to the 2012
PM2.5 NAAQS.
EPA has developed a consistent
framework for addressing the prong 1
and 2 interstate-transport requirements
with respect to the PM2.5 NAAQS in
several previous federal rulemakings.
The four basic steps of that framework
include: (1) Identifying downwind
receptors that are expected to have
problems attaining or maintaining the
NAAQS; (2) identifying which upwind
states contribute to these identified
problems in amounts sufficient to
warrant further review and analysis; (3)
for states identified as contributing to
downwind air quality problems,
identifying upwind emissions
reductions necessary to prevent an
upwind state from significantly
contributing to nonattainment or
interfering with maintenance of the
NAAQS downwind; and (4) for states
that are found to have emissions that
significantly contribute to
nonattainment or interfere with
maintenance of the NAAQS downwind,
reducing the identified upwind
emissions through adoption of
permanent and enforceable measures.
This framework was most recently
applied with respect to PM2.5 in the
Cross-State Air Pollution Rule (CSAPR),
which addressed both the 1997 and
2006 PM2.5 standards, as well as the
1997 ozone standard. See 76 FR 48208
(August 8, 2011).
EPA’s analysis for CSAPR, conducted
consistent with the four-step framework,
included air-quality modeling that
evaluated the impacts of 38 eastern
states on identified receptors in the
eastern United States. EPA indicated
that, for step 2 of the framework, states
with impacts on downwind receptors
that are below the contribution
threshold of 1% of the relevant NAAQS
would not be considered to significantly
contribute to nonattainment or interfere
with maintenance of the relevant
NAAQS, and would, therefore, not be
included in CSAPR. See 76 FR 48220.
EPA further indicated that such states
could rely on EPA’s analysis for CSAPR
as technical support in order to
demonstrate that their existing or future
interstate transport SIP submittals are
adequate to address the transport
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requirements of 110(a)(2)(D)(i)(I) with
regard to the relevant NAAQS. Id.
In addition, as noted above, on March
17, 2016, EPA released the 2016
memorandum to provide information to
states as they develop SIPs addressing
the Good Neighbor provision as it
pertains to the 2012 PM2.5 NAAQS.
Consistent with step 1 of the framework,
the 2016 memorandum provides
projected future-year annual PM2.5
design values for monitors throughout
the country based on quality-assured
and certified ambient-monitoring data
and recent air-quality modeling and
explains the methodology used to
develop these projected design values.
The memorandum also describes how
the projected values can be used to help
determine which monitors should be
further evaluated to potentially address
if emissions from other states
significantly contribute to
nonattainment or interfere with
maintenance of the 2012 PM2.5 NAAQS
at these monitoring sites. The 2016
memorandum explained that the
pertinent year for evaluating air quality
for purposes of addressing interstate
transport for the 2012 PM2.5 NAAQS is
2021, the attainment deadline for 2012
PM2.5 NAAQS nonattainment areas
classified as Moderate. Accordingly,
because the available data included
2017 and 2025 projected average and
maximum PM2.5 design values
calculated through the CAMx
photochemical model, the
memorandum suggests approaches
states might use to interpolate PM2.5
values at sites in 2021.
For all but one monitor site in the
eastern United States, the modeling data
provided in the 2016 memorandum
showed that monitors were expected to
both attain and maintain the 2012 PM2.5
NAAQS in both 2017 and 2025. The
modeling results project that this one
monitor, the Liberty monitor, (ID
number 420030064), located in
Allegheny County, Pennsylvania, will
be above the 2012 annual PM2.5 NAAQS
in 2017, but only under the model’s
maximum projected conditions, which
are used in EPA’s interstate transport
framework to identify maintenance
receptors. The Liberty monitor (along
with all the other Allegheny County
monitors) is projected to both attain and
maintain the NAAQS in 2025. The 2016
memorandum suggests that under such
a condition (again, where EPA’s
photochemical modeling indicates an
area will maintain the 2012 annual
PM2.5 NAAQS in 2025, but not in 2017),
further analysis of the site should be
performed to determine if the site may
be a nonattainment or maintenance
receptor in 2021 (which, again, is the
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attainment deadline for moderate PM2.5
areas). The memorandum also indicates
that for certain states with incomplete
ambient monitoring data, additional
information including the latest
available data, should be analyzed to
determine whether there are potential
downwind air quality problems that
may be impacted by transported
emissions. This rulemaking considers
these analyses for Maine, as well as
additional analysis conducted by EPA
during review of Maine’s submittal.
To develop the projected values
presented in the memorandum, EPA
used the results of nationwide
photochemical air-quality modeling that
it recently performed to support several
rulemakings related to the ozone
NAAQS. Base-year modeling was
performed for 2011. Future-year
modeling was performed for 2017 to
support the proposed CSAPR Update for
the 2008 Ozone NAAQS. See 80 FR
75705 (December 3, 2015). Future-year
modeling was also performed for 2025
to support the Regulatory Impact
Assessment of the final 2015 Ozone
NAAQS.7 The outputs from these model
runs included hourly concentrations of
PM2.5 that were used in conjunction
with measured data to project annual
average PM2.5 design values for 2017
and 2025. Areas that were designated as
moderate PM2.5 nonattainment areas for
the 2012 annual PM2.5 NAAQS in 2014
must attain the NAAQS by December
31, 2021, or as expeditiously as
practicable. Although neither the
available 2017 nor 2025 future-year
modeling data corresponds directly to
the future-year attainment deadline for
moderate PM2.5 nonattainment areas,
EPA believes that the modeling
information is still helpful for
identifying potential nonattainment and
maintenance receptors in the 2017–2021
period. Assessing downwind PM2.5 airquality problems based on estimates of
air-quality concentrations in a future
year aligned with the relevant
attainment deadline is consistent with
the instructions from the United States
Court of Appeals for the District of
Columbia Circuit in North Carolina v.
EPA, 531 F.3d 896, 911–12 (DC Cir.
2008) that upwind emission reductions
should be harmonized, to the extent
possible, with the attainment deadlines
for downwind areas.
Maine’s Submission for Prongs 1 and 2
On July 6, 2016, Maine DEP submitted
an infrastructure SIP submission for the
2012 PM2.5 NAAQS that addressed
prongs 1 and 2 for the 2012 PM2.5
7 See 2015 ozone NAAQS RIA at: https://
www3.epa.gov/ttnecas1/docs/20151001ria.pdf.
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NAAQS. The state’s submission relied
in part on EPA’s analysis performed for
the CSAPR rulemaking to conclude that
the state will not significantly
contribute to nonattainment or interfere
with maintenance of the 2012 PM2.5
NAAQS in any downwind area.
EPA analyzed the state’s July 2016
submittal to determine whether it fully
addresses the prong 1 and 2 transport
provisions with respect to the 2012
PM2.5 NAAQS. As discussed below, EPA
concludes that emissions of PM2.5 and
PM2.5 precursors (NOX and SO2) in
Maine will not significantly contribute
to nonattainment or interfere with
maintenance of the 2012 PM2.5 NAAQS
in any other state.
Analysis of Maine’s Submission for the
2012 PM2.5 NAAQS
As noted above, the modeling
discussed in EPA’s 2016 memorandum
identified one potential maintenance
receptor for the 2012 PM2.5 NAAQS at
the Liberty monitor (ID number
420030064), located in Allegheny
County. The memorandum also
identified certain states with incomplete
ambient monitoring data as areas that
may require further analysis to
determine whether there are potential
downwind air quality problems that
may be impacted by transported
emissions.
While developing the 2011 CSAPR
rulemaking, EPA modeled the impacts
of all 38 eastern states in its modeling
domain on PM2.5 concentrations at
downwind receptors in other states in
the 2012 analysis year in order to
evaluate the contribution of upwind
states on downwind states with respect
to the 1997 and 2006 PM2.5. Although
the modeling was not conducted for
purposes of analyzing upwind states’
impacts on downwind receptors with
respect to the 2012 PM2.5 NAAQS, the
contribution analysis for the 1997 and
2006 standards can be informative for
evaluating Maine’s compliance with the
Good Neighbor provision for the 2012
standard.
This CSAPR modeling showed that
Maine had a very small impact (0.003
mg/m3) on the Liberty monitor in
Allegheny County, which is the only
out-of-state monitor that may be a
nonattainment or maintenance receptor
in 2021. Although EPA has not
proposed a specific threshold for
evaluating the 2012 PM2.5 NAAQS, EPA
notes that Maine’s impact on the Liberty
monitor is far below the threshold of 1%
for the annual 2012 PM2.5 NAAQS (i.e.,
0.12 mg/m3) that EPA previously used to
evaluate the contribution of upwind
states to downwind air-quality
monitors. (A spreadsheet showing
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CSAPR contributions for ozone and
PM2.5 is included in docket EPA–HQ–
OAR–2009–0491–4228.) Therefore, even
if the Liberty monitor were considered
a receptor for purposes of transport, the
EPA proposes to conclude that Maine
will not significantly contribute to
nonattainment, or interfere with
maintenance, of the 2012 PM2.5 NAAQS
at that monitor.
In addition, the Liberty monitor is
already close to attaining the 2012 PM2.5
NAAQS, and expected emissions
reductions in the next four years will
lead to additional reductions in
measured PM2.5 concentrations. There
are both local and regional components
to measured PM2.5 levels. All monitors
in Allegheny County have a regional
component, with the Liberty monitor
most strongly influenced by local
sources. This is confirmed by the fact
that annual average measured
concentrations at the Liberty monitor
have consistently been 2–4 mg/m3 higher
than other monitors in Allegheny
County.
Specifically, previous CSAPR
modeling showed that regional
emissions from upwind states,
particularly SO2 and NOX emissions,
contribute to PM2.5 nonattainment at the
Liberty monitor. In recent years, large
SO2 and NOX reductions from power
plants have occurred in Pennsylvania
and states upwind from the Greater
Pittsburgh region. Pennsylvania’s energy
sector emissions of SO2 will have
decreased 166,000 tons between 2015–
2017 as a result of CSAPR
implementation. This is due to both the
installation of emissions controls and
retirements of electric generating units
(EGUs). Projected power plant closures
and additional emissions controls in
Pennsylvania and upwind states will
help further reduce both direct PM2.5
and PM2.5 precursors. Regional emission
reductions will continue to occur from
current on-the-books federal and state
regulations such as the federal on-road
and non-road vehicle programs, and
various rules for major stationary
emissions sources. See proposed
approval of the Ohio Infrastructure SIP
for the 2012 PM2.5 NAAQS (82 FR
57689; December 7, 2017).
In addition to regional emissions
reductions and plant closures,
additional local reductions to both
direct PM2.5 and SO2 emissions are
expected to occur and should contribute
to further declines in Allegheny
County’s PM2.5 monitor concentrations.
For example, significant SO2 reductions
have recently occurred at US Steel’s
integrated steel mill facilities in
southern Allegheny County as part of a
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1-hr SO2 NAAQS SIP.8 Reductions are
largely due to declining sulfur content
in the Clairton Coke Work’s coke oven
gas (COG). Because this COG is burned
at US Steel’s Clairton Coke Works, Irvin
Mill, and Edgar Thompson Steel Mill,
these reductions in sulfur content
should contribute to much lower PM2.5
precursor emissions in the immediate
future. The Allegheny SO2 SIP also
projects lower SO2 emissions resulting
from vehicle fuel standards, reductions
in general emissions due to declining
population in the Greater Pittsburgh
region, and several shutdowns of
significant sources of emissions in
Allegheny County.
EPA modeling projections, the recent
downward trend in local and upwind
emissions reductions, the expected
continued downward trend in emissions
between 2017 and 2021, and the
downward trend in monitored PM2.5
concentrations all indicate that the
Liberty monitor will attain and be able
to maintain the 2012 annual PM2.5
NAAQS by 2021. See proposed approval
of the Ohio Infrastructure SIP (82 FR
57689).
As noted in the 2016 memorandum,
several states have had recent dataquality issues identified as part of the
PM2.5 designations process. In
particular, some ambient PM2.5 data for
certain time periods between 2009 and
2013 in Florida, Illinois, Idaho,
Tennessee, and Kentucky did not meet
all data-quality requirements under 40
CFR part 50, appendix L. The lack of
data means that the relevant areas in
those states could potentially be in
nonattainment or be maintenance
receptors in 2021. However, as
mentioned above, EPA’s analysis for the
2011 CSAPR rulemaking with respect to
the 2006 PM2.5 NAAQS determined that
Maine’s impact to all these downwind
receptors would be well below the 1%
contribution threshold for this NAAQS.
That conclusion informs the analysis of
Maine’s contributions for purposes of
the 2012 PM2.5 NAAQS as well. Given
this, and the fact that the state’s PM2.5
design values for all ambient monitors
have been well below the 2012 24-hour
NAAQS (35 mg/m3) and the annual
PM2.5 NAAQS (12.0 mg/m3) since 2005–
2007,9 EPA concludes that it is highly
unlikely that Maine significantly
contributes to nonattainment or
interferes with maintenance of the 2012
8 https://www.achd.net/air/pubs/SIPs/SO2_2010_
NAAQS_SIP_9-14-2017.pdf.
9 Maine’s PM
2.5 design values for all ambient
monitors from 2005–2007 through 2013–2015 are
available on the Design Value Reports at https://
19january2017snapshot.epa.gov/air-trends/airquality-design-values_.html.
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PM2.5 NAAQS in areas with data-quality
issues.
Information in Maine’s July 2016 SIP
submission corroborates EPA’s
proposed conclusion that Maine’s SIP
meets its Good Neighbor obligations.
The state’s technical analysis in that
submission includes 2012–2014 design
values for monitors in Maine, actual and
projected PM2.5 emissions from 2002
through 2020 for various source
categories for Maine, and results of EPA
CSAPR modeling. As mentioned above,
the state’s PM2.5 design values for all
ambient monitors have been well below
the 2012 PM2.5 NAAQS since 2005–
2007. In addition, the 24-hour and
annual design values for all monitors in
the neighboring and nearby states of
New Hampshire, Massachusetts, and
Vermont also have been below the 2012
PM2.5 NAAQS since 2005–2007.
At specific monitors in Maine, the
highest 24-hour mean value satisfying
minimum data completion criteria was
25 mg/m3 in 2016 at a monitor in
Rumford in Oxford County. The highest
annual mean value satisfying minimum
data completion criteria was 9 mg/m3 in
2014 at a monitor in Madawaska in
Aroostook County.10
Second, Maine’s sources are wellcontrolled. Maine’s July 2016
submission indicates that the state has
many SIP-approved rules and programs
that limit emissions of PM2.5 and PM2.5
precursors and the interstate transport
of pollution, including 06–096 Code of
Maine Regulations (CMR) Chapter 102,
‘‘Open Burning Regulation’’ (73 FR
9459, February 21, 2008); 06–096 CMR
Chapter 103, ‘‘Fuel Burning Equipment
Particulate Emission Standard’’ (50 FR
7770, February 26, 1985); and Chapter
145, ‘‘NOX Control Program’’ (70 FR
11879, March 10, 2005), as well the
state’s Title V permitting program (38
MRSA § 353–A; 06–096 CMR Chapter
140, which was approved by EPA on
October 18, 2001 (66 FR 52874)).
It should also be noted that Maine is
not in the CSAPR program because EPA
analyses show that the state does not
emit NOX at a level that contributes
significantly to non-attainment or
interferes with maintenance of the 1997
and 2006 PM2.5 NAAQS in any other
state.
For the reasons explained herein, EPA
agrees with Maine’s conclusions and
proposes to determine that Maine will
not significantly contribute to
nonattainment or interfere with
maintenance of the 2012 PM2.5 NAAQS
10 24-hour and annual PM
2.5 monitor values for
individual monitoring sites throughout Maine are
available at www.epa.gov/outdoor-air-quality-data/
monitor-values-report.
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in any other state. Therefore, EPA is
proposing to approve the July 2016
infrastructure SIP submission from
Maine with regard to prongs 1 and 2 of
CAA section 110(a)(2)(D)(i)(I) for the
2012 PM2.5 NAAQS.
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Sub-Element 2: 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. One way for a state to meet this
requirement, specifically with respect to
in-state sources and pollutants that are
subject to PSD permitting, is through a
comprehensive PSD permitting program
that applies to all regulated NSR
pollutants and that satisfies the
requirements of EPA’s PSD
implementation rules. 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
last approved revisions to Maine’s
NNSR regulations on February 14, 1996
(61 FR 5690).
To meet the requirements of Prong 3,
Maine DEP cites to its PSD permitting
programs under 06–096 CMR Chapter
115, ‘‘Major and Minor Source Air
Emission License Regulations,’’ to
ensure that new and modified major
sources of PM2.5, SO2, and NOX
emissions do not contribute
significantly to nonattainment, or
interfere with maintenance, of those
standards. As noted above in our
discussion of Element C, Maine’s PSD
program fully satisfies the requirements
of EPA’s PSD implementation rules.
Consequently, we are proposing to
approve Maine’s infrastructure SIP
submission for the 2012 PM2.5 NAAQS
related to section 110(a)(2)(D)(i)(II)
Prong 3 for the reasons discussed under
Element C.
Sub-Element 3: Section
110(a)(2)(D)(i)(II)—Visibility Protection
(Prong 4)
With regard to applicable
requirements for visibility protection of
section 110(a)(2)(D)(i)(II), states are
subject to visibility and regional-haze
program requirements under part C of
the CAA (which includes sections 169A
and 169B). EPA’s 2009, 2011, and 2013
memoranda recommend that these
requirements can be satisfied by an
approved SIP addressing reasonably
attributable visibility impairment, if
required, or an approved SIP addressing
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regional haze. 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. EPA approved Maine’s
Regional Haze SIP on April 24, 2012 (77
FR 24385). Accordingly, EPA proposes
that Maine has met the visibility
protection requirements of
110(a)(2)(D)(i)(II) for the 2012 PM2.5
NAAQS.
Sub-Element 4: Section
110(a)(2)(D)(ii)—Interstate Pollution
Abatement
This sub-element requires each SIP to
contain provisions requiring compliance
with requirements of 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, § 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.’’ 06–096 CMR Chapter
115, § IX(E)(2). These provisions are
consistent with EPA’s PSD regulations
and require notice to affected states of
a determination to issue a draft PSD
permit. Regarding section 126(b), no
source or sources within the state are
the subject of an active finding with
respect to the 2012 PM2.5 NAAQS.
Consequently, EPA proposes to approve
Maine’s infrastructure SIP submittals for
this sub-element with respect to the
2012 PM2.5 NAAQS.
Sub-Element 5: Section
110(a)(2)(D)(ii)—International Pollution
Abatement
This sub-element requires each SIP to
contain provisions requiring compliance
with the applicable requirements of
CAA § 115 relating to international
pollution abatement. There are no final
findings under section 115 against
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Maine with respect to the 2012 PM2.5
NAAQS. Therefore, EPA proposes that
Maine has met the applicable
infrastructure SIP requirements of
section 110(a)(2)(D)(ii) related to section
115 for the 2012 PM2.5 NAAQS.
E. Section 110(a)(2)(E)—Adequate
Resources
This section requires each state to
provide for personnel, funding, and
legal authority under state law to carry
out its SIP and related issues. In
addition, Section 110(a)(2)(E)(ii)
requires each state to comply with the
requirements with respect to state
boards under 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
NAAQS. This last sub-element,
however, is inapplicable 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
to 38 MRSA § 341–A, ‘‘Department of
Environmental Protection,’’ 38 MRSA
§ 341–D, ‘‘Board responsibilities and
duties,’’ 38 MRSA § 342,
‘‘Commissioner, duties’’ and 38 MRSA
§ 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 2012
PM2.5 NAAQS. Additionally, state law
provides Maine 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 DEP
states that these funding sources
provide it with adequate resources to
carry out the SIP. Therefore, EPA
proposes that Maine has met the
infrastructure SIP requirements of this
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portion of section 110(a)(2)(E) with
respect to the 2012 PM2.5 NAAQS.
Sub-Element 2: State Board
Requirements Under Section 128 of the
CAA
Section 110(a)(2)(E) also requires each
SIP to provide requirements that the
State comply with the state board
requirements of section 128 of the CAA.
Section 128(a) 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.
As mentioned earlier, the 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
Memorandum, and that the requirement
of CAA § 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
§ 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. § 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
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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. § 341–C(2). EPA proposes
to find that these provisions fulfill the
requirement that at least a majority of
Board members represent the public
interest, but do 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.
Furthermore, section 341–C is not
currently in Maine’s SIP. By letter dated
March 1, 2018 (extended to apply to the
2012 PM2.5 NAAQS in an email dated
July 17, 2018), DEP committed to revise
section 341–C to address the CAA
§ 128(a)(1) 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, for
inclusion in the SIP, the necessary
provisions to EPA within one year of
EPA final action on its infrastructure
SIPs for the 2008 lead (Pb), 2008 ozone,
and 2010 nitrogen dioxide (NO2)
NAAQS. Final action on these SIPs was
published on June 18, 2018 (83 FR
28157). Consequently, EPA proposes to
conditionally approve Maine’s
infrastructure SIP submittal for this
requirement of CAA § 128(a)(1) for the
2012 PM2.5 NAAQS.
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.’’ As EPA has
explained in other infrastructure SIP
actions, 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 DEP
Commissioner are not reviewable by the
Board, but rather may be appealed
directly to Maine Superior Court. For
this reason, EPA interprets the conflict
of interest requirement of CAA
§ 128(a)(2) to be applicable in Maine to
both Board members and the DEP
Commissioner.
In a recent infrastructure SIP action
for the 2008 Pb, 2008 ozone, and 2010
NO2 NAAQS, EPA determined that
Maine’s conflict of interest statute, 5
MRSA § 18, and a provision explicitly
making it applicable to Board members,
38 MRSA § 341–C(7), together satisfy
the CAA § 128(a)(2) requirement for
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Maine with respect to Board members,
and EPA approved both statutes into the
Maine SIP. 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
§ 128(a)(2) with respect to Board
members for the 2012 PM2.5 NAAQS for
the same reasons discussed in the
infrastructure SIP action for the 2008
Pb, 2008 ozone, and 2010 NO2 NAAQS.
Regarding the DEP Commissioner,
state law at 38 MRSA § 341–A(3)(D) also
explicitly makes that official subject to
5 MRSA § 18, the same conflict-ofinterest statute to which the Board is
subject. In the above-referenced
infrastructure SIP action, EPA also
determined that together 5 MRSA § 18
(which is in the Maine SIP) and 38
MRSA § 341–A(3)(D) (which is not
currently in the SIP) satisfy the conflict
of interest requirement with respect to
the DEP Commissioner. See 83 FR
28157; 83 FR 12905, 12912. For the
same reasons discussed in the
infrastructure SIP action for the 2008
Pb, 2008 ozone, and 2010 NO2 NAAQS,
EPA proposes that together the two state
statutes would also satisfy the conflict
of interest requirement with respect to
the DEP Commissioner for the 2012
PM2.5 NAAQS. While 38 MRSA § 341–
A(3)(D) is not currently in the SIP,
Maine DEP has already committed to
submitting it to EPA for inclusion
within one year of EPA’s final action on
Maine’s infrastructure SIP submissions
for the 2008 Pb, 2008 ozone, and 2010
NO2 NAAQS. See 83 FR 28157.
Consequently, EPA proposes to
conditionally approve Maine’s
infrastructure SIP submissions for the
conflict of interest requirement of CAA
§ 128(a)(2) with respect to the DEP
Commissioner for the 2012 PM2.5
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. Lastly, the
reports shall be available at reasonable
times for public inspection.
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Maine’s infrastructure submittal
references several existing state
regulations previously approved by EPA
that require sources to monitor
emissions and submit reports. The first
reference is to 06–096 CMR Chapter
115, ‘‘Major and Minor Source Air
Emission License Regulations.’’ This
regulation contains compliance
assurance requirements for licensed
sources and stipulates that licenses shall
include the following compliance
assurance elements: (a) A description of
all required monitoring and analysis
procedures or test methods required
under the requirements applicable to
the source; (b) A description of all
recordkeeping requirements; and (c) A
description of all reporting
requirements. The second reference is to
06–096 CMR Chapter 117, ‘‘Source
Surveillance.’’ This regulation specifies
which air emission sources 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. In
addition, Maine cites its regulations
implementing its operating permit
program pursuant to 40 CFR part 70:
06–096 CMR Chapter 140, ‘‘Part 70 Air
Emission License Regulations.’’ These
regulations, although not in the SIP,
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 §§ 344 and 590. Chapter 140
contains compliance assurance
requirements regarding monitoring and
reporting for licensed sources requiring
a Part 70 air emission license. The
regulation was approved by EPA on
October 18, 2001 (66 FR 52874). While
Chapter 140 and the referenced
provisions of Chapter 115 are not
formally approved into Maine’s SIP,
they are legal mechanisms the state can
use to assure the enforcement of the
monitoring requirements approved in
the SIP.
Regarding the section 110(a)(2)(F)
requirements that the SIP provide for
the 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 DEP
uses a web-based electronic reporting
system, the Maine Air Emissions
Inventory Reporting System
(‘‘MAIRIS’’), for this purpose that allows
it to package and electronically submit
reported emissions data to EPA under
the national emission inventory (NEI)
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program. NEI data are available to the
public. See www.epa.gov/air-emissionsinventories/national-emissionsinventory-nei. The MAIRIS system is
structured to electronically correlate
reported emissions with permit
conditions and other applicable
standards, and identify all
inconsistencies and potential
compliance concerns.
Furthermore, pursuant to DEP’s EPAapproved regulations, ‘‘Except as
expressly made confidential by law; the
commissioner shall make all documents
available to the public for inspection
and copying including the following: 1.
All applications or other forms and
documents submitted in support of any
license application: 2. All
correspondence, into or out of the
Department, and any attachments
thereto . . . .’’ See 06–096 CMR
Chapter 1, § 6(A). Furthermore, ‘‘The
Commissioner shall keep confidential
only those documents which may
remain confidential pursuant to 1
MRSA Section 402.’’ Id. § 6(B). In its
July 6, 2016, submittal, DEP certified
that, ‘‘[e]xcept as specifically exempted
by the Maine statute (1 MRSA Chapter
13 Public Records and Proceedings),
Maine makes all records, reports or
information obtained by the MEDEP or
referred to at public hearings available
to the public.’’ Maine DEP further
certified therein that the information
submitted to Maine DEP is ‘‘available to
the public at reasonable times for public
inspection pursuant to Maine law.’’ By
letter dated March 1, 2018 (extended to
apply to the 2012 PM2.5 NAAQS in an
email dated July 17, 2018), Maine
further certified that Maine’s Freedom
of Access law does not include any
exceptions that apply to stationary
source emissions. For these reasons, we
propose to find that Maine satisfies the
requirement that emissions statements
be available at reasonable times for
public inspection.
Finally, in the March 1, 2018, letter
(extended to apply to the 2012 PM2.5
NAAQS in an email dated July 17,
2018), DEP also certified 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, § 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
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.’’). For the
above reasons, EPA proposes to approve
Maine’s submittals for this requirement
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of section 110(a)(2)(F) for the 2012 PM2.5
NAAQS.
G. Section 110(a)(2)(G)—Emergency
Powers
This section requires that a plan
provide for state authority comparable
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 DEP’s July 6, 2016,
submittal and a March 1, 2018, letter
(extended to apply to the 2012 PM2.5
NAAQS in an email dated July 17, 2018)
provides for authority comparable to
that given the Administrator in CAA
section 303, as explained below. First,
38 MRSA § 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 § 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.
§ 347–A(1)(A)(4). Similarly, 38 MRSA
§ 348, ‘‘Judicial Enforcement,’’
authorizes Maine 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. § 348(1). Section 348
also authorizes Maine 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,
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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.
§ 348(3). Thus, these provisions
authorize Maine 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.
Second, in its March 1, 2018, letter,
Maine DEP also cites to 38 MRSA § 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 PM2.5, or
PM2.5 precursors may be causing or
contributing to an ‘‘imminent and
substantial endangerment to public
health or welfare, or the environment,’’
a violation of § 591 would also occur,
since Maine law provides that ambient
air quality standards are designed to
prevent ‘‘air pollution,’’ id. § 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. § 582(3) (emphasis
added). In its March 1, 2018, letter,
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.’’
Third, in the unlikely event that air
emissions are creating a substantial or
immediate threat to the public health,
safety or to the environment without
violating any DEP law, regulation, order,
or permit, emergency authority to issue
an order to restrain a source may also
be exercised pursuant to 37–B MRSA
§ 742, ‘‘Emergency Proclamation.’’
Maine explains that the DEP
Commissioner can notify the Governor
of an imminent ‘‘disaster,’’ and the
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Governor can then exercise authority to
‘‘declare a state of emergency in the
State or any section of the State.’’ See
37–B MRSA § 742(1)(A). State law
defines ‘‘disaster’’ in this context to
mean ‘‘the occurrence or imminent
threat of widespread or severe damage,
injury or loss of life or property
resulting from any natural or man-made
cause, including, but not limited to . . .
air contamination.’’ Id. § 703(2). Upon
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.
§ 742(1)(C)(11), or ‘‘[t]ake whatever
action is necessary to abate, clean up or
mitigate whatever danger may exist
within the affected area,’’ id.
§ 742(1)(C)(12). Thus, even if there may
otherwise be no violation of a DEPadministered or -issued law, regulation,
order, or permit, state authorities exist
to restrain the source.
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 § 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 certain
state statutes and regulations provide for
authority comparable to that provided to
the Administrator in CAA § 303.
Section 110(a)(2)(G) also requires a
state to submit for EPA approval a
contingency plan (also known as an
emergency episode plan) to implement
the air agency’s emergency episode
authority for any Air Quality Control
Region (AQCR) within the state that is
classified as Priority I, IA, or II for
certain pollutants. See 40 CFR 51.150.
For classifications for Maine, see 40 CFR
52.1021. AQCRs classified as Priority III
do not require contingency plans. See
40 CFR 51.152(c). In general,
contingency plans for Priority I, IA, and
II areas must meet the applicable
requirements of 40 CFR part 51, subpart
H (40 CFR 51.150 through 51.153)
(‘‘Prevention of Air Pollution
Emergency Episodes’’) for the relevant
NAAQS, if the NAAQS is covered by
those regulations. In the case of PM2.5,
EPA has not promulgated regulations
that provide the ambient levels to
classify different priority levels for the
2012 standard (or any PM2.5 NAAQS).
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For the 2006 PM2.5 NAAQS, EPA’s 2009
Guidance recommends that states
develop emergency episode plans for
any area that has monitored and
recorded 24-hour PM2.5 levels greater
than 140 mg/m3 since 2006. EPA’s
review of Maine’s certified air quality
data in AQS indicates that the highest
24-hour PM2.5 level recorded since 2006
was 83.3 mg/m3, which occurred in 2017
in the town of Madawaska in Aroostook
County.11 Therefore, EPA proposes that
a specific contingency plan from Maine
for PM2.5 is not necessary. Furthermore,
although not expected, if PM2.5
conditions in Maine were to change,
Maine DEP has general authority to
order a source to reduce or discontinue
air pollution as required to protect the
public health or safety or the
environment, as discussed earlier. In
addition, as a matter of practice, Maine
posts on the internet daily forecasted
PM2.5 levels through the EPA AirNow
and EPA Enviroflash systems.
Information regarding these two systems
is available on EPA’s website at
www.airnow.gov. When levels are
forecast to exceed the 24-hour PM2.5
standard in Maine, notices are sent out
to Enviroflash participants, 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 for contingency plans in
40 CFR 51.152.
Therefore, EPA proposes that Maine,
through the combination of statutes and
regulations discussed above and
participation in EPA’s AirNow program,
meets the applicable infrastructure SIP
requirements of section 110(a)(2)(G)
with respect to the 2012 PM2.5 NAAQS.
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 into account
changes in the NAAQS or availability of
improved methods for attaining the
NAAQS and whenever the EPA finds
that the SIP is substantially inadequate.
To address this requirement, Maine’s
infrastructure submittal references 38
MRSA § 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
11 24-hour and annual PM
2.5 monitor values for
individual monitoring sites throughout Maine are
available at www.epa.gov/outdoor-air-quality-data/
monitor-values-report.
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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 § 341–A(1). Furthermore,
Maine 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. § 341–
H(2); see also id. § 585–A (recognizing
DEP’s rulemaking authority to propose
SIP revisions). These general
authorizing 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
availability of improved methods for
attaining the NAAQS and whenever the
EPA finds that the SIP is substantially
inadequate.
Consequently, EPA proposes that
Maine meets the infrastructure SIP
requirements of CAA section
110(a)(2)(H) for the 2012 PM2.5 NAAQS.
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I. Section 110(a)(2)(I)—Nonattainment
Area Plan or Plan Revisions Under Part
D
The CAA requires that each plan or
plan revision for an area designated as
a nonattainment area meet the
applicable requirements of part D of the
CAA. Part D relates to nonattainment
areas. EPA has determined that section
110(a)(2)(I) is not applicable to the
infrastructure SIP process. Instead, 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
The evaluation of the submission
from Maine with respect to the
requirements of CAA section 110(a)(2)(J)
is described below.
Sub-Element 1: Consultation With
Government Officials
States must provide a process for
consultation with local governments
and Federal Land Managers (FLMs) in
carrying out NAAQS implementation
requirements.
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Pursuant to state law, Maine DEP is
authorized to, among other things,
‘‘educate the public on natural resource
use, requirements and issues.’’ See 38
MRSA § 341–A(1). 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,’’ id. § 341–B, and
authorizes it to ‘‘cooperate with other
state or federal departments or agencies
to carry out’’ its responsibilities, id.
§ 341–F(6). Furthermore, pursuant to
Maine’s EPA-approved regulations,
Maine DEP is required 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 06–096 CMR
Chapter 115, § IX(E)(3) (approved March
23, 1993 (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 § 583–
B; 06–096 CMR Chapter 114, § 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
Procedures 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 has met the
infrastructure SIP requirements of this
portion of section 110(a)(2)(J) with
respect to the 2012 PM2.5 NAAQS.
Sub-Element 2: Public Notification
Section 110(a)(2)(J) also requires
states to 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 elsewhere in this
notice, state law directs Maine DEP to,
among other things, ‘‘prevent, abate and
control the pollution of the air . . .
improve and prevent diminution of the
natural environment of the State[, and]
protect and enhance the public’s right to
use and enjoy the State’s natural
resources.’’ See 38 MRSA § 341–A(1).
State law also authorizes Maine DEP to
‘‘educate the public on natural resource
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use, requirements and issues. Id. § 341–
A(1). To that end, Maine DEP makes
real-time and historical air quality
information available on its website.
The agency also provides extendedrange air-quality forecasts, which give
the public advanced notice of air quality
events. This advance notice allows the
public to limit their exposure to
unhealthy air and enact a plan to reduce
pollution at home and at work. Maine
DEP forecasts daily ozone and particle
levels and issues these forecasts to the
media and to the public via its website,
telephone hotline, and email. Alerts
include information about the health
implications of elevated pollutant levels
and list actions to reduce emissions and
to reduce the public’s exposure. In
addition, Air Quality Data Summaries of
the year’s air-quality monitoring results
are issued annually and posted on the
Maine DEP Bureau of Air Quality
website. Maine is also an active partner
in EPA’s AirNow and EnviroFlash air
quality alert programs.
EPA proposes that Maine has met the
infrastructure SIP requirements of this
portion of section 110(a)(2)(J) with
respect to the 2012 PM2.5 NAAQS.
Sub-Element 3: PSD
State plans must meet the applicable
requirements of part C of the CAA
related to PSD. Maine’s PSD program in
the context of infrastructure SIPs has
already been discussed in sections
110(a)(2)(C) and 110(a)(2)(D)(i)(II) and,
as we have noted, fully satisfies the
requirements of EPA’s PSD
implementation rules. Consequently, we
propose to approve the PSD sub-element
of section 110(a)(2)(J) for the 2012 PM2.5
NAAQS, consistent with the actions we
are proposing for sections 110(a)(2)(C)
and 110(a)(2)(D)(i)(II).
Sub-Element 4: Visibility Protection
With regard to the applicable
requirements for 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 SIP submissions.
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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 has interpreted section
110(a)(2)(K) to require a state to 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. See
2013 Memorandum at 55.
Maine state law implicitly authorizes
Maine DEP to perform air quality
modeling and provide such modeling
data to EPA upon request. See 38 MRSA
§§ 341–A(1), 581, 591–B. In addition,
Maine cites 06–096 CMR Chapters 115
and 140, which 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. Chapters 115 and 140 also
require that applicants submit data
related to modeling to Maine DEP. See
Email from Jeff Crawford, Maine DEP, to
Alison Simcox, EPA (July 17, 2018). In
its July 6, 2016, submission, Maine DEP
further states that it performs modeling,
provides modeling data to EPA upon
request, and will continue to do both.
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.
EPA proposes that Maine meets the
infrastructure SIP requirements of
section 110(a)(2)(K) with respect to the
2012 PM2.5 NAAQS.
sradovich on DSK3GMQ082PROD with PROPOSALS
L. Section 110(a)(2)(L)—Permitting Fees
This section requires SIPs to mandate
that each major stationary source pay
permitting fees sufficient to cover the
reasonable cost of reviewing, approving,
implementing, and enforcing a permit.
Maine implements and operates a
Title V permit program, see 38 MRSA
§ 353–A; 06–096 CMR Chapter 140,
which was approved by EPA on October
18, 2001 (66 FR 52874). To gain this
approval, Maine demonstrated the
ability to collect sufficient fees to run
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the program. See 61 FR 49289, 49291
(September 19, 1996). Maine state law
provides for the assessment of
application fees from air emissions
sources for permits for the construction
or modification of air contaminant
sources and sets permit fees. See 38
MRSA §§ 353–A (establishing annual air
emissions license fees), 352(2)(E)
(providing that such fees ‘‘must be
assessed to support activities for air
quality control including licensing,
compliance, enforcement, monitoring,
data acquisition and administration’’).
EPA proposes that Maine meets the
infrastructure SIP requirements of
section 110(a)(2)(L) for the 2012 PM2.5
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’s infrastructure submittal
references the Maine Administrative
Procedure Act, 5 MRSA Chapter 375,
and explains that it 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 § 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 (37 FR
10842), and contains intergovernmental
cooperation provisions.
EPA proposes that Maine meets the
infrastructure SIP requirements of
section 110(a)(2)(M) with respect to the
2012 PM2.5 NAAQS.
IV
EPA proposes to approve Maine’s July
6, 2016, infrastructure SIP submission
certifying that its current SIP is
sufficient to meet the required
infrastructure elements under sections
110(a)(1) and (2) for the 2012 PM2.5
NAAQS, with the exception of CAA
section 110(a)(2)(E)(ii) regarding State
Boards and Conflicts of Interest, which
we propose to conditionally approve, as
described in more detail above. EPA’s
proposed actions regarding these
infrastructure SIP requirements are
contained in Table 1 below.
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Element
(A): Emission limits and other control
measures.
(B): Ambient air quality monitoring
and data system.
(C)1: Enforcement of SIP measures
(C)2: PSD program for major sources
and major modifications.
(C)3: PSD program for minor sources
and minor modifications.
(D)1: Contribute to nonattainment/
interfere with maintenance of
NAAQS.
(D)2: PSD ..........................................
(D)3: Visibility Protection ...................
(D)4: Interstate Pollution Abatement
(D)5: International Pollution Abatement.
(E)1: Adequate resources ..................
(E)2: State boards .............................
(E)3: Necessary assurances with respect to local agencies.
(F): Stationary source monitoring
system.
(G): Emergency power ......................
(H): Future SIP revisions ...................
(I): Nonattainment area plan or plan
revisions under part D.
(J)1: Consultation with government
officials.
(J)2: Public notification ......................
(J)3: PSD ...........................................
(J)4: Visibility protection .....................
(K): Air quality modeling and data .....
(L): Permitting fees ............................
(M): Consultation and participation by
affected local entities.
39969
2012
PM2.5
A
A
A
A
A
A
A
A
A
A
A
CA
NA
A
A
A
NG
A
A
A
NG
A
A
A
In the above table, the key is as
follows:
A ............
CA ..........
NA ..........
NG .........
Approve.
Conditionally approve.
Not applicable.
Not germane to infrastructure
SIPs.
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. As noted in Table 1, EPA is
proposing to conditionally approve one
portion of Maine’s July 2016
infrastructure SIP submission for the
2012 PM2.5 NAAQS pertaining to
Element E(2) regarding State Boards and
Conflicts of Interest.
Under section 110(k)(4) of the Act,
EPA may conditionally approve a plan
based on a commitment from the State
to adopt specific enforceable measures
by a date certain, but not later than 1
year from the date of approval. If EPA
conditionally approves the commitment
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sradovich on DSK3GMQ082PROD with PROPOSALS
in a final rulemaking action, the State
must meet its commitment to submit an
update to its State Board rules that fully
remedies the deficiency mentioned
above under element E. If the State fails
to do so, this action will become a
disapproval one year from the date of
final approval. EPA will notify the State
by letter that this action has occurred.
At that time, this commitment will no
longer be a part of the approved Maine
SIP. EPA subsequently will publish a
document in the Federal Register
notifying the public that the conditional
approval automatically converted to a
disapproval. If the State meets its
commitment, within the applicable time
frame, the conditionally approved
submission will remain a part of the SIP
until EPA takes final action approving
or disapproving the submission. If EPA
disapproves the new submittal, the
conditionally approved infrastructure
SIP elements will also be disapproved at
that time. If EPA approves the submittal,
the conditionally approved
infrastructure SIP elements will be fully
approved in their entirety and replace
the conditionally approved program in
the SIP.
If the conditional approval is
converted to a disapproval, the final
disapproval triggers the Federal
implementation plan (FIP) requirement
under section 110(c).
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
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);
• This action 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
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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: August 6, 2018.
Alexandra Dunn,
Regional Administrator, EPA Region 1.
[FR Doc. 2018–17247 Filed 8–10–18; 8:45 am]
BILLING CODE 6560–50–P
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2017–0060; FRL–9982–
11—Region 5]
Air Plan Approval; Minnesota;
Infrastructure SIP Requirements for
the 2012 PM2.5 NAAQS; Multistate
Transport
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
elements of the State Implementation
Plan (SIP) submission from Minnesota
regarding the infrastructure
requirements of section 110 of the Clean
Air Act (CAA) for the 2012 annual fine
particulate matter (PM2.5) National
Ambient Air Quality Standard (NAAQS
or standard). 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. This
action pertains specifically to
infrastructure requirements concerning
interstate transport provisions.
DATES: Comments must be received on
or before September 12, 2018.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R05–
OAR–2017–0060 at https://
www.regulations.gov, or via email to
blakley.pamela@epa.gov. 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, 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. 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
SUMMARY:
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]]>Agencies
[Federal Register Volume 83, Number 156 (Monday, August 13, 2018)]
[Proposed Rules]
[Pages 39957-39970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17247]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R01-OAR-2018-0138; FRL-9981-85-Region 1]
Air Plan Approval; Maine; Infrastructure State Implementation
Plan Requirements for the 2012 PM2.5 NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve elements of a State Implementation Plan (SIP) submission from
Maine that addresses the infrastructure requirements of the Clean Air
Act (CAA or Act) for the 2012 fine particle (PM2.5) National
Ambient Air Quality Standard (NAAQS). EPA is also proposing to
conditionally approve one sub-element of Maine's infrastructure SIP.
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 with respect to this
NAAQS under the CAA.
DATES: Comments must be received on or before September 12, 2018.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2018-0138 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 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 New England Regional Office,
Office of Ecosystem Protection, Air Quality Planning Unit, 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.
FOR FURTHER INFORMATION CONTACT: Alison C. Simcox, Air Quality Planning
Unit, Air Programs Branch, U.S. Environmental Protection Agency, Region
1, 5 Post Office Square, Suite 100 (Mail code OEP05-2), Boston, MA
02109--3912, tel. (617) 918-1684; [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 Maine SIP submission does this rulemaking address?
B. What is the scope of this rulemaking?
II. What guidance is EPA using to evaluate this SIP submission?
III. EPA's Review
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
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. Background and Purpose
A. What Maine SIP submission does this rulemaking address?
This rulemaking addresses a July 6, 2016 submission from the Maine
Department of Environmental Protection (Maine DEP) regarding the
infrastructure SIP requirements of the CAA for the 2012 fine particle
(PM2.5\1\) National Ambient Air Quality Standard (NAAQS).
The primary, health-based annual standard is set at 12.0 micrograms per
cubic meter ([micro]g/m\3\) and the 24-hour standard is set at 35
[micro]g/m\3\. See 78 FR 3086. Under sections 110(a)(1) and (2) of the
CAA, states are required to provide infrastructure SIP submissions to
ensure that state SIPs provide for implementation, maintenance, and
enforcement of the NAAQS, including the 2012 PM2.5 NAAQS. On
March 1, 2018, Maine DEP submitted a letter providing clarifying
information for several of its infrastructure SIP submittals. In a July
17, 2018 email, Maine DEP asked EPA to apply this letter to the
infrastructure SIP submittal for the 2012 PM2.5 NAAQS, as
well. The information in the letter and email (both included in the
docket for this rulemaking) is mainly applicable to Elements E, F, G,
and K.
---------------------------------------------------------------------------
\1\ PM2.5 refers to particulate matter of 2.5 microns
or less in diameter, often referred to as ``fine'' particles.
---------------------------------------------------------------------------
[[Page 39958]]
B. What is the scope of this rulemaking?
EPA is acting on a SIP submission from Maine DEP that addresses the
infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for
the 2012 PM2.5 NAAQS.
The requirement for states to make a SIP submission of this type
arises out of CAA sections 110(a)(1) and 110(a)(2). Pursuant to these
sections, each state must submit a SIP that provides for the
implementation, maintenance, and enforcement of each primary or
secondary NAAQS. States must make such SIP submission ``within 3 years
(or such shorter period as the Administrator may prescribe) after the
promulgation of a new or revised NAAQS.'' This requirement is triggered
by the promulgation of a new or revised NAAQS and is not conditioned
upon EPA's taking any other action. Section 110(a)(2) includes the
specific elements that ``each such plan'' must address.
EPA commonly refers to such SIP submissions made for the purpose of
satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as
``infrastructure SIP'' submissions. Although the term ``infrastructure
SIP'' does not appear in the CAA, EPA uses the term to distinguish this
particular type of SIP submission from submissions that are intended to
satisfy other SIP requirements under the CAA, such as ``nonattainment
SIP'' or ``attainment plan SIP'' submissions to address the
nonattainment planning requirements of part D of title I of the CAA.
This rulemaking will not cover three substantive areas that are not
integral to acting on a state's infrastructure SIP submission: (i)
Existing provisions related to excess emissions during periods of
start-up, shutdown, or malfunction at sources (``SSM'' emissions) that
may be contrary to the CAA and EPA's policies addressing such excess
emissions; (ii) existing provisions related to ``director's variance''
or ``director's discretion'' that purport to permit revisions to SIP-
approved emissions limits with limited public process or without
requiring further approval by EPA, that may be contrary to the CAA
(``director's discretion''); and, (iii) existing provisions for
Prevention of Significant Deterioration (PSD) programs that may be
inconsistent with current requirements of EPA's ``Final New Source
Review (NSR) Improvement Rule,'' 67 FR 80186 (December 31, 2002), as
amended by 72 FR 32526 (June 13, 2007) (``NSR Reform''). Instead, EPA
has the authority to address each one of these substantive areas
separately. A detailed history, interpretation, and rationale for EPA's
approach to infrastructure SIP requirements can be found in EPA's May
13, 2014, proposed rule entitled, ``Infrastructure SIP Requirements for
the 2008 Lead NAAQS'' in the section, ``What is the scope of this
rulemaking?'' See 79 FR 27241 at 27242-45.
II. What guidance is EPA using to evaluate this SIP submission?
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
guidance). EPA has issued additional guidance documents and memoranda,
including a September 13, 2013, memorandum entitled ``Guidance on
Infrastructure State Implementation Plan (SIP) Elements under Clean Air
Act Sections 110(a)(1) and 110(a)(2)'' (2013 memorandum).\2\
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\2\ This memorandum and other referenced guidance documents and
memoranda are included in the docket for this action.
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With respect to the ``Good Neighbor'' or interstate transport
requirements for infrastructure SIPs, the most recent relevant EPA
guidance is a memorandum published on March 17, 2016, entitled
``Information on the Interstate Transport ``Good Neighbor'' Provision
for the 2012 Fine Particulate Matter National Ambient Air Quality
Standards under Clean Air Act Section 110(a)(2)(D)(i)(I)'' (2016
memorandum). The 2016 memorandum describes EPA's past approach to
addressing interstate transport, and provides EPA's general review of
relevant modeling data and air quality projections as they relate to
the 2012 annual PM2.5 NAAQS. The 2016 memorandum provides
information relevant to EPA Regional office review of the CAA section
110(a)(2)(D)(i)(I) ``Good Neighbor'' provision requirements in
infrastructure SIPs with respect to the 2012 annual PM2.5
NAAQS. This rulemaking considers information provided in that
memorandum.
III. EPA's review
EPA is soliciting comment on our evaluation of Maine's
infrastructure SIP submission in this notice of proposed rulemaking. In
Maine's submission, a detailed list of Maine Laws and previously SIP-
approved Air Quality Regulations show precisely how the various
components of its EPA-approved SIP meet each of the requirements of
section 110(a)(2) of the CAA for the 2012 PM2.5 NAAQS. The
following review evaluates the state's submissions in light of section
110(a)(2) requirements and relevant EPA guidance.
A. Section 110(a)(2)(A)--Emission Limits and Other Control Measures
This section (also referred to in this 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.\3\ 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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\3\ See, e.g., EPA's final rule on ``National Ambient Air
Quality Standards for Lead.'' 73 FR 66964, 67034 (November 12,
2008).
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Maine's infrastructure submittal for this element cites Maine laws
and regulations that include enforceable emission limitations and other
control measures, means or techniques, as well as schedules and
timetables for compliance to meet the applicable requirements of the
CAA. Maine DEP statutory authority with respect to air quality is set
out in Title 38 of the Maine Revised Statutes Annotated (``MRSA''),
Chapter 4, ``Protection and Improvement of Air.'' Maine DEP's general
authority to promulgate regulations is codified at 38 MRSA Chapter 2,
Subchapter 1, ``Organization and Powers,'' \4\ and the authority to
establish emission standards and regulations implementing ambient air
quality standards is contained in 38 MRSA Chapter 4, sections 585 and
585-A.
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\4\ Maine DEP consists of the Board of Environmental Protection
(``Board'') and a Commissioner. 38 MRSA Sec. 341-A(2). In general,
the Board is authorized to promulgate ``major substantive rules''
and the Commissioner has rulemaking authority with respect to rules
that are ``not designated as major substantive rules.'' Id. Sec.
341-H.
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The Maine submittal cites two dozen specific rules that the state
has adopted to control the emissions of criteria pollutants and
precursors, including PM2.5. A few of these rules, with
their EPA-approval citation, are listed here: 06-096 Code of Maine
Regulations (``CMR'') Chapter 102, ``Open Burning'' (73 FR 9459,
February 21, 2008); Chapter 103, ``Fuel Burning Equipment
[[Page 39959]]
Particulate Emission Standard'' (50 FR 7770, February 26, 1985);
Chapter 104, ``Incinerator Particulate Emission Standard'' (37 FR
10842, May 31, 1972); and Chapter 150, ``Control of Emissions from
Outdoor Wood Boilers'' (April 24, 2012). The Maine regulations listed
above were previously approved into the Maine SIP by EPA. See 40 CFR
52.1020.
EPA proposes that Maine meets the infrastructure SIP requirements
of section 110(a)(2)(A) with respect to the 2012 PM2.5
NAAQS. As previously noted, EPA is not proposing to approve or
disapprove any existing state provisions or rules related to SSM or
director's discretion in the context of section 110(a)(2)(A).
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 make such data available to EPA upon request. Each year, states
submit annual air 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 MRSA Sec. Sec. 341-A(1)
and 584-A, Maine DEP operates an air quality monitoring network, and
EPA approved the state's most recent Annual Air Monitoring Network Plan
for PM2.5 on August 23, 2017.\5\ Furthermore, Maine 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 DEP meets the
infrastructure SIP requirements of section 110(a)(2)(B) with respect to
the 2012 PM2.5 NAAQS.
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\5\ See EPA approval letter located in the docket for this
action.
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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 the regulation of construction of new or
modified stationary sources to meet NSR requirements under 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 DEP identifies the sources of its authority to enforce the
measures it cites to satisfy Element A (Emission limits and other
control measures) as 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,'' which include 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
for PM2.5. EPA proposes that Maine has met the enforcement
requirement of section 110(a)(2)(C) with respect to the 2012
PM2.5 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. 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).
EPA's ``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'' (Phase
2 Rule) was published on November 29, 2005 (70 FR 71612). Among other
requirements, the Phase 2 Rule obligated states to revise their PSD
programs to explicitly identify NOX as a precursor to ozone.
See 70 FR 71679. This requirement is codified in 40 CFR 51.166, and
requires that states submit SIP revisions incorporating the
requirements of the rule, including provisions that would treat
NOX as a precursor to ozone provisions. These SIP revisions
were to have been submitted to EPA by states by June 15, 2007. See 70
FR 71683.
Maine has adopted, and EPA has approved, rules addressing the
changes to 40 CFR 51.166 required by the Phase 2 Rule, including
amending its SIP to include NOX and VOC as precursor
pollutants to ozone, in order to define what constitutes a
``significant'' increase in actual emissions from a source of air
contaminants. See 81 FR 50353 (August 1, 2016). Therefore, EPA proposes
to approve Maine's infrastructure SIP submission for the 2012
PM2.5 NAAQS with respect to the requirements of the Phase 2
Rule and the PSD sub-element of section 110(a)(2)(C).
On May 16, 2008 (73 FR 28321), EPA issued the Final Rule on the
``Implementation of the New Source Review (NSR) Program for Particulate
Matter Less than 2.5 Micrometers (PM2.5)'' (2008 NSR Rule).
The 2008 NSR Rule finalized several new requirements for SIPs to
address sources that emit direct PM2.5 and other pollutants
that contribute to secondary PM2.5 formation. One of these
requirements is for NSR permits to address pollutants responsible for
the secondary formation of PM2.5, otherwise known as
precursors. In the 2008 rule, EPA identified precursors to
PM2.5 for the PSD program to be SO2 and
NOX (unless the state demonstrates to the Administrator's
satisfaction or EPA demonstrates that NOX emissions in an
area are not a significant contributor to that area's ambient
PM2.5 concentrations). The 2008 NSR Rule also specifies that
VOCs are not considered to be precursors to PM2.5 in the PSD
program unless the state demonstrates to the Administrator's
satisfaction or EPA demonstrates that emissions of VOCs in an area are
[[Page 39960]]
significant contributors to that area's ambient PM2.5
concentrations.
The explicit references to SO2, NOX, and VOCs
as they pertain to secondary PM2.5 formation are codified at
40 CFR 51.166(b)(49)(i)(b) and 40 CFR 52.21(b)(50)(i)(b). As part of
identifying pollutants that are precursors to PM2.5, the
2008 NSR Rule also required states to revise the definition of
``significant'' as it relates to a net emissions increase or the
potential of a source to emit pollutants. Specifically, 40 CFR
51.166(b)(23)(i) and 40 CFR 52.21(b)(23)(i) define ``significant'' for
PM2.5 to mean the following emissions rates: 10 tons per
year (tpy) of direct PM2.5; 40 tpy of SO2; and 40
tpy of NOX (unless the state demonstrates to the
Administrator's satisfaction or EPA demonstrates that NOX
emissions in an area are not a significant contributor to that area's
ambient PM2.5 concentrations). The deadline for states to
submit SIP revisions to their PSD programs incorporating these changes
was May 16, 2011. See 73 FR 28321 at 28341.\6\
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\6\ EPA notes that on January 4, 2013, the U.S. Court of Appeals
for the D.C. Circuit, in Natural Resources Defense Council v. EPA,
706 F.3d 428 (DC Cir.), held that EPA should have issued the 2008
NSR Rule in accordance with the CAA's requirements for
PM10 nonattainment areas (Title I, part D, subpart 4),
and not the general requirements for nonattainment areas under
subpart 1 (Natural Resources Defense Council v. EPA, No. 08-1250).
As the subpart 4 provisions apply only to nonattainment areas, EPA
does not consider the portions of the 2008 rule that address
requirements for PM2.5 attainment and unclassifiable
areas to be affected by the court's opinion. Moreover, EPA does not
anticipate the need to revise any PSD requirements promulgated by
the 2008 NSR rule in order to comply with the court's decision.
Accordingly, EPA's approval of Maine's infrastructure SIP as to
Elements C, D(i)(II), or J with respect to the PSD requirements
promulgated by the 2008 implementation rule does not conflict with
the court's opinion.
The Court's decision with respect to the nonattainment NSR
requirements promulgated by the 2008 implementation rule also does
not affect EPA's action on the present infrastructure action. EPA
interprets the CAA to exclude nonattainment area requirements,
including requirements associated with a nonattainment NSR program,
from infrastructure SIP submissions due three years after adoption
or revisitation of a NAAQS. Instead, these elements are typically
referred to as nonattainment SIP or attainment plan elements, which
would be due by the dates statutorily prescribed under subpart 2
through 5 under part D, extending as far as 10 years following
designations for some elements.
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On August 1, 2016 (81 FR 50353), EPA approved revisions to Maine's
PSD program that identify SO2 and NOX as
precursors to PM2.5 and revise the state's regulatory
definition of ``significant'' for PM2.5 to mean 10 tons per
year (tpy) or more of direct PM2.5 emissions, 40 tpy or more
of SO2 emissions, or 40 tpy or more of NOX
emissions.
The 2008 NSR Rule did not require states to immediately account for
gases that could condense to form particulate matter, known as
condensables, in PM2.5 and PM10 emission limits
in NSR permits. Instead, EPA determined that states had to account for
PM2.5 and PM10 condensables for applicability
determinations and in establishing emissions limitations for
PM2.5 and PM10 in PSD permits beginning on or
after January 1, 2011. See 73 FR 28321 at 28334. This requirement is
codified in 40 CFR 51.166(b)(49)(i)(a) and 40 CFR 52.21(b)(50)(i)(a).
Maine's SIP-approved PSD program defines PM2.5 and
PM10 emissions in such a manner that gaseous emissions which
would condense under ambient conditions are treated in an equivalent
manner as required by EPA's definition of ``regulated air pollutant''
in 40 CFR 51.166(b)(49)(i)(a). EPA approved these definitions into the
SIP on August 1, 2016 (81 FR 50353). Consequently, we propose that the
state's PSD program adequately accounts for the condensable fraction of
PM2.5 and PM10.
Therefore, we propose to approve Maine's infrastructure SIP
submittal for the 2012 PM2.5 NAAQS with respect to the
requirements of the 2008 NSR Rule and the PSD sub-element of section
110(a)(2)(C).
On October 20, 2010 (75 FR 64864), EPA issued the final rule on 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)''
(2010 NSR Rule). This rule established several components for making
PSD permitting determinations for PM2.5, including a system
of ``increments,'' which is the mechanism used to estimate significant
deterioration of ambient air quality for a pollutant. These increments
are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c). On June 24, 2014
(79 FR 35695), EPA approved PM2.5 increments in 06-096 CMR
Chapter 110 of Maine's regulations.
The 2010 NSR Rule also established a new ``major source baseline
date'' for PM2.5 as October 20, 2010, and a new trigger date
for PM2.5 of October 20, 2011 in the definition of ``minor
source baseline date.'' These revisions are codified in 40 CFR
51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and 40 CFR 52.21(b)(14)(i)(c)
and (b)(14)(ii)(c). Lastly, the 2010 NSR Rule revised the definition of
``baseline area'' to include a level of significance (SIL) of 0.3
micrograms per cubic meter ([micro]g/m\3\), annual average, for
PM2.5. This change is codified in 40 CFR 51.166(b)(15)(i)
and 40 CFR 52.21(b)(15)(i). On August 1, 2016 (81 FR 50353), EPA
approved revisions to the Maine SIP that address EPA's 2010 NSR rule.
Therefore, with respect to the 2010 NSR Rule and the PSD sub-element of
section 110(a)(2)(C), we are proposing to approve Maine's
infrastructure SIP submittal for the 2012 PM2.5 NAAQS.
With respect to Elements C and J, EPA interprets the Clean Air Act
to require each state to make an infrastructure SIP submission for a
new or revised NAAQS that demonstrates that the air agency has a
complete PSD permitting program meeting the current requirements for
all regulated NSR pollutants. The requirements of Element D(i)(II) may
also be satisfied by demonstrating the air agency has a complete PSD
permitting program correctly addressing all regulated NSR pollutants.
Maine has shown that it currently has a PSD program in place that
covers all regulated NSR pollutants, including GHGs.
On June 23, 2014, the United States Supreme Court issued a decision
addressing the application of PSD permitting requirements to GHG
emissions. Utility Air Regulatory Group v. Environmental Protection
Agency, 134 S.Ct. 2427. The Supreme Court said that EPA may not treat
GHGs as an air pollutant for purposes of determining whether a source
is a major source required to obtain a PSD permit. The Court also said
that EPA could continue to require that PSD permits, otherwise required
based on emissions of pollutants other than GHGs, contain limitations
on GHG emissions based on the application of BACT.
In accordance with the Supreme Court decision, on April 10, 2015,
the U.S. Court of Appeals for the District of Columbia Circuit (the
D.C. Circuit) issued an amended judgment vacating the regulations that
implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas
Tailoring Rule, but not the regulations that implement Step 1 of that
rule. Step 1 of the Tailoring Rule covers sources that are required to
obtain a PSD permit based on emissions of pollutants other than GHGs.
Step 2 applied to sources that emitted only GHGs above the thresholds
triggering the requirement to obtain a PSD permit. The amended judgment
preserves, without the need for additional rulemaking by EPA, the
application of the Best Available Control Technology (BACT) requirement
to GHG emissions from Step 1 or ``anyway'' sources. With respect to
Step 2 sources, the D.C. Circuit's amended judgment vacated the
regulations at issue in the litigation, including 40 CFR
51.166(b)(48)(v), ``to
[[Page 39961]]
the extent they require a stationary source to obtain a PSD permit if
greenhouse gases are the only pollutant (i) that the source emits or
has the potential to emit above the applicable major source thresholds,
or (ii) for which there is a significant emission increase from a
modification.''
On August 19, 2015, EPA amended its PSD and title V regulations to
remove from the Code of Federal Regulations portions of those
regulations that the D.C. Circuit specifically identified as vacated.
EPA intends to further revise the PSD and title V regulations to fully
implement the Supreme Court and D.C. Circuit rulings in a separate
rulemaking. This future rulemaking will include revisions to additional
definitions in the PSD regulations.
Some states have begun to revise their existing SIP-approved PSD
programs in light of these court decisions, and some states may prefer
not to initiate this process until they have more information about the
additional planned revisions to EPA's PSD regulations. EPA is not
expecting states to have revised their PSD programs in anticipation of
EPA's additional actions to revise its PSD program rules in response to
the court decisions for purposes of infrastructure SIP submissions.
Instead, EPA is only evaluating such submissions to assure that the
state's program addresses GHGs consistent with both the court decision,
and the revisions to PSD regulations that EPA has completed at this
time.
On October 5, 2012 (77 FR 49404), EPA approved revisions to the
Maine SIP that modified Maine's PSD program to establish appropriate
emission thresholds for determining which new stationary sources and
modification projects become subject to Maine's PSD permitting
requirements for their GHG emissions. Therefore, EPA has determined
that Maine's SIP is sufficient to satisfy Elements C, D(i)(II), and J
with respect to GHGs. The Supreme Court decision and subsequent D.C.
Circuit judgment do not prevent EPA's approval of Maine's
infrastructure SIP as to the requirements of Element C, as well as sub-
elements D(i)(II), and J(iii).
For the purposes of this rulemaking on Maine's infrastructure SIP,
EPA reiterates that NSR Reform is not in the scope of these actions.
In summary, we are proposing to approve Maine's submittal for this
sub-element with respect to the 2012 PM2.5 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 2012 PM2.5 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 2012 PM2.5 NAAQS.
D. Section 110(a)(2)(D)--Interstate Transport.
This section contains a comprehensive set of air quality management
elements pertaining to the transport of air pollution with which states
must comply. It covers the following five topics, categorized as sub-
elements: Sub-element 1, Significant contribution to nonattainment, and
interference with maintenance of a NAAQS; Sub-element 2, PSD; Sub-
element 3, Visibility protection; Sub-element 4, Interstate pollution
abatement; and Sub-element 5, International pollution abatement. Sub-
elements 1 through 3 above are found under section 110(a)(2)(D)(i) of
the Act, and these items are further categorized into the four prongs
discussed below, two of which are found within sub-element 1. Sub-
elements 4 and 5 are found under section 110(a)(2)(D)(ii) of the Act
and include provisions insuring compliance with sections 115 and 126 of
the Act relating to interstate and international pollution abatement.
Sub-Element 1: Section 110(a)(2)(D)(i)(I)--Contribute to Nonattainment
(Prong 1) and Interfere With Maintenance of the NAAQS (Prong 2)
Section 110(a)(2)(D)(i)(I) of the CAA requires a SIP to prohibit
any emissions activity in the state that will contribute significantly
to nonattainment or interfere with maintenance of the NAAQS in any
downwind state. EPA commonly refers to these requirements as prong 1
(significant contribution to nonattainment) and prong 2 (interference
with maintenance), or jointly as the ``Good Neighbor'' or ``transport''
provisions of the CAA. This rulemaking proposes action on the portions
of Maine's July 6, 2016, SIP submission that address the prong 1 and 2
requirements with respect to the 2012 PM2.5 NAAQS.
EPA has developed a consistent framework for addressing the prong 1
and 2 interstate-transport requirements with respect to the
PM2.5 NAAQS in several previous federal rulemakings. The
four basic steps of that framework include: (1) Identifying downwind
receptors that are expected to have problems attaining or maintaining
the NAAQS; (2) identifying which upwind states contribute to these
identified problems in amounts sufficient to warrant further review and
analysis; (3) for states identified as contributing to downwind air
quality problems, identifying upwind emissions reductions necessary to
prevent an upwind state from significantly contributing to
nonattainment or interfering with maintenance of the NAAQS downwind;
and (4) for states that are found to have emissions that significantly
contribute to nonattainment or interfere with maintenance of the NAAQS
downwind, reducing the identified upwind emissions through adoption of
permanent and enforceable measures. This framework was most recently
applied with respect to PM2.5 in the Cross-State Air
Pollution Rule (CSAPR), which addressed both the 1997 and 2006
PM2.5 standards, as well as the 1997 ozone standard. See 76
FR 48208 (August 8, 2011).
EPA's analysis for CSAPR, conducted consistent with the four-step
framework, included air-quality modeling that evaluated the impacts of
38 eastern states on identified receptors in the eastern United States.
EPA indicated that, for step 2 of the framework, states with impacts on
downwind receptors that are below the contribution threshold of 1% of
the relevant NAAQS would not be considered to significantly contribute
to nonattainment or interfere with maintenance of the relevant NAAQS,
and would, therefore, not be included in CSAPR. See 76 FR 48220. EPA
further indicated that such states could rely on EPA's analysis for
CSAPR as technical support in order to demonstrate that their existing
or future interstate transport SIP submittals are adequate to address
the transport
[[Page 39962]]
requirements of 110(a)(2)(D)(i)(I) with regard to the relevant NAAQS.
Id.
In addition, as noted above, on March 17, 2016, EPA released the
2016 memorandum to provide information to states as they develop SIPs
addressing the Good Neighbor provision as it pertains to the 2012
PM2.5 NAAQS. Consistent with step 1 of the framework, the
2016 memorandum provides projected future-year annual PM2.5
design values for monitors throughout the country based on quality-
assured and certified ambient-monitoring data and recent air-quality
modeling and explains the methodology used to develop these projected
design values. The memorandum also describes how the projected values
can be used to help determine which monitors should be further
evaluated to potentially address if emissions from other states
significantly contribute to nonattainment or interfere with maintenance
of the 2012 PM2.5 NAAQS at these monitoring sites. The 2016
memorandum explained that the pertinent year for evaluating air quality
for purposes of addressing interstate transport for the 2012
PM2.5 NAAQS is 2021, the attainment deadline for 2012
PM2.5 NAAQS nonattainment areas classified as Moderate.
Accordingly, because the available data included 2017 and 2025
projected average and maximum PM2.5 design values calculated
through the CAMx photochemical model, the memorandum suggests
approaches states might use to interpolate PM2.5 values at
sites in 2021.
For all but one monitor site in the eastern United States, the
modeling data provided in the 2016 memorandum showed that monitors were
expected to both attain and maintain the 2012 PM2.5 NAAQS in
both 2017 and 2025. The modeling results project that this one monitor,
the Liberty monitor, (ID number 420030064), located in Allegheny
County, Pennsylvania, will be above the 2012 annual PM2.5
NAAQS in 2017, but only under the model's maximum projected conditions,
which are used in EPA's interstate transport framework to identify
maintenance receptors. The Liberty monitor (along with all the other
Allegheny County monitors) is projected to both attain and maintain the
NAAQS in 2025. The 2016 memorandum suggests that under such a condition
(again, where EPA's photochemical modeling indicates an area will
maintain the 2012 annual PM2.5 NAAQS in 2025, but not in
2017), further analysis of the site should be performed to determine if
the site may be a nonattainment or maintenance receptor in 2021 (which,
again, is the attainment deadline for moderate PM2.5 areas).
The memorandum also indicates that for certain states with incomplete
ambient monitoring data, additional information including the latest
available data, should be analyzed to determine whether there are
potential downwind air quality problems that may be impacted by
transported emissions. This rulemaking considers these analyses for
Maine, as well as additional analysis conducted by EPA during review of
Maine's submittal.
To develop the projected values presented in the memorandum, EPA
used the results of nationwide photochemical air-quality modeling that
it recently performed to support several rulemakings related to the
ozone NAAQS. Base-year modeling was performed for 2011. Future-year
modeling was performed for 2017 to support the proposed CSAPR Update
for the 2008 Ozone NAAQS. See 80 FR 75705 (December 3, 2015). Future-
year modeling was also performed for 2025 to support the Regulatory
Impact Assessment of the final 2015 Ozone NAAQS.\7\ The outputs from
these model runs included hourly concentrations of PM2.5
that were used in conjunction with measured data to project annual
average PM2.5 design values for 2017 and 2025. Areas that
were designated as moderate PM2.5 nonattainment areas for
the 2012 annual PM2.5 NAAQS in 2014 must attain the NAAQS by
December 31, 2021, or as expeditiously as practicable. Although neither
the available 2017 nor 2025 future-year modeling data corresponds
directly to the future-year attainment deadline for moderate
PM2.5 nonattainment areas, EPA believes that the modeling
information is still helpful for identifying potential nonattainment
and maintenance receptors in the 2017-2021 period. Assessing downwind
PM2.5 air-quality problems based on estimates of air-quality
concentrations in a future year aligned with the relevant attainment
deadline is consistent with the instructions from the United States
Court of Appeals for the District of Columbia Circuit in North Carolina
v. EPA, 531 F.3d 896, 911-12 (DC Cir. 2008) that upwind emission
reductions should be harmonized, to the extent possible, with the
attainment deadlines for downwind areas.
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\7\ See 2015 ozone NAAQS RIA at: https://www3.epa.gov/ttnecas1/docs/20151001ria.pdf.
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Maine's Submission for Prongs 1 and 2
On July 6, 2016, Maine DEP submitted an infrastructure SIP
submission for the 2012 PM2.5 NAAQS that addressed prongs 1
and 2 for the 2012 PM2.5 NAAQS. The state's submission
relied in part on EPA's analysis performed for the CSAPR rulemaking to
conclude that the state will not significantly contribute to
nonattainment or interfere with maintenance of the 2012
PM2.5 NAAQS in any downwind area.
EPA analyzed the state's July 2016 submittal to determine whether
it fully addresses the prong 1 and 2 transport provisions with respect
to the 2012 PM2.5 NAAQS. As discussed below, EPA concludes
that emissions of PM2.5 and PM2.5 precursors
(NOX and SO2) in Maine will not significantly
contribute to nonattainment or interfere with maintenance of the 2012
PM2.5 NAAQS in any other state.
Analysis of Maine's Submission for the 2012 PM2.5 NAAQS
As noted above, the modeling discussed in EPA's 2016 memorandum
identified one potential maintenance receptor for the 2012
PM2.5 NAAQS at the Liberty monitor (ID number 420030064),
located in Allegheny County. The memorandum also identified certain
states with incomplete ambient monitoring data as areas that may
require further analysis to determine whether there are potential
downwind air quality problems that may be impacted by transported
emissions.
While developing the 2011 CSAPR rulemaking, EPA modeled the impacts
of all 38 eastern states in its modeling domain on PM2.5
concentrations at downwind receptors in other states in the 2012
analysis year in order to evaluate the contribution of upwind states on
downwind states with respect to the 1997 and 2006 PM2.5.
Although the modeling was not conducted for purposes of analyzing
upwind states' impacts on downwind receptors with respect to the 2012
PM2.5 NAAQS, the contribution analysis for the 1997 and 2006
standards can be informative for evaluating Maine's compliance with the
Good Neighbor provision for the 2012 standard.
This CSAPR modeling showed that Maine had a very small impact
(0.003 [mu]g/m\3\) on the Liberty monitor in Allegheny County, which is
the only out-of-state monitor that may be a nonattainment or
maintenance receptor in 2021. Although EPA has not proposed a specific
threshold for evaluating the 2012 PM2.5 NAAQS, EPA notes
that Maine's impact on the Liberty monitor is far below the threshold
of 1% for the annual 2012 PM2.5 NAAQS (i.e., 0.12 [mu]g/
m\3\) that EPA previously used to evaluate the contribution of upwind
states to downwind air-quality monitors. (A spreadsheet showing
[[Page 39963]]
CSAPR contributions for ozone and PM2.5 is included in
docket EPA-HQ-OAR-2009-0491-4228.) Therefore, even if the Liberty
monitor were considered a receptor for purposes of transport, the EPA
proposes to conclude that Maine will not significantly contribute to
nonattainment, or interfere with maintenance, of the 2012
PM2.5 NAAQS at that monitor.
In addition, the Liberty monitor is already close to attaining the
2012 PM2.5 NAAQS, and expected emissions reductions in the
next four years will lead to additional reductions in measured
PM2.5 concentrations. There are both local and regional
components to measured PM2.5 levels. All monitors in
Allegheny County have a regional component, with the Liberty monitor
most strongly influenced by local sources. This is confirmed by the
fact that annual average measured concentrations at the Liberty monitor
have consistently been 2-4 [mu]g/m\3\ higher than other monitors in
Allegheny County.
Specifically, previous CSAPR modeling showed that regional
emissions from upwind states, particularly SO2 and
NOX emissions, contribute to PM2.5 nonattainment
at the Liberty monitor. In recent years, large SO2 and
NOX reductions from power plants have occurred in
Pennsylvania and states upwind from the Greater Pittsburgh region.
Pennsylvania's energy sector emissions of SO2 will have
decreased 166,000 tons between 2015-2017 as a result of CSAPR
implementation. This is due to both the installation of emissions
controls and retirements of electric generating units (EGUs). Projected
power plant closures and additional emissions controls in Pennsylvania
and upwind states will help further reduce both direct PM2.5
and PM2.5 precursors. Regional emission reductions will
continue to occur from current on-the-books federal and state
regulations such as the federal on-road and non-road vehicle programs,
and various rules for major stationary emissions sources. See proposed
approval of the Ohio Infrastructure SIP for the 2012 PM2.5
NAAQS (82 FR 57689; December 7, 2017).
In addition to regional emissions reductions and plant closures,
additional local reductions to both direct PM2.5 and
SO2 emissions are expected to occur and should contribute to
further declines in Allegheny County's PM2.5 monitor
concentrations. For example, significant SO2 reductions have
recently occurred at US Steel's integrated steel mill facilities in
southern Allegheny County as part of a 1-hr SO2 NAAQS
SIP.\8\ Reductions are largely due to declining sulfur content in the
Clairton Coke Work's coke oven gas (COG). Because this COG is burned at
US Steel's Clairton Coke Works, Irvin Mill, and Edgar Thompson Steel
Mill, these reductions in sulfur content should contribute to much
lower PM2.5 precursor emissions in the immediate future. The
Allegheny SO2 SIP also projects lower SO2
emissions resulting from vehicle fuel standards, reductions in general
emissions due to declining population in the Greater Pittsburgh region,
and several shutdowns of significant sources of emissions in Allegheny
County.
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\8\ https://www.achd.net/air/pubs/SIPs/SO2_2010_NAAQS_SIP_9-14-2017.pdf.
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EPA modeling projections, the recent downward trend in local and
upwind emissions reductions, the expected continued downward trend in
emissions between 2017 and 2021, and the downward trend in monitored
PM2.5 concentrations all indicate that the Liberty monitor
will attain and be able to maintain the 2012 annual PM2.5
NAAQS by 2021. See proposed approval of the Ohio Infrastructure SIP (82
FR 57689).
As noted in the 2016 memorandum, several states have had recent
data-quality issues identified as part of the PM2.5
designations process. In particular, some ambient PM2.5 data
for certain time periods between 2009 and 2013 in Florida, Illinois,
Idaho, Tennessee, and Kentucky did not meet all data-quality
requirements under 40 CFR part 50, appendix L. The lack of data means
that the relevant areas in those states could potentially be in
nonattainment or be maintenance receptors in 2021. However, as
mentioned above, EPA's analysis for the 2011 CSAPR rulemaking with
respect to the 2006 PM2.5 NAAQS determined that Maine's
impact to all these downwind receptors would be well below the 1%
contribution threshold for this NAAQS. That conclusion informs the
analysis of Maine's contributions for purposes of the 2012
PM2.5 NAAQS as well. Given this, and the fact that the
state's PM2.5 design values for all ambient monitors have
been well below the 2012 24-hour NAAQS (35 [micro]g/m\3\) and the
annual PM2.5 NAAQS (12.0 [micro]g/m\3\) since 2005-2007,\9\
EPA concludes that it is highly unlikely that Maine significantly
contributes to nonattainment or interferes with maintenance of the 2012
PM2.5 NAAQS in areas with data-quality issues.
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\9\ Maine's PM2.5 design values for all ambient
monitors from 2005-2007 through 2013-2015 are available on the
Design Value Reports at https://19january2017snapshot.epa.gov/air-trends/air-quality-design-values_.html.
---------------------------------------------------------------------------
Information in Maine's July 2016 SIP submission corroborates EPA's
proposed conclusion that Maine's SIP meets its Good Neighbor
obligations. The state's technical analysis in that submission includes
2012-2014 design values for monitors in Maine, actual and projected
PM2.5 emissions from 2002 through 2020 for various source
categories for Maine, and results of EPA CSAPR modeling. As mentioned
above, the state's PM2.5 design values for all ambient
monitors have been well below the 2012 PM2.5 NAAQS since
2005-2007. In addition, the 24-hour and annual design values for all
monitors in the neighboring and nearby states of New Hampshire,
Massachusetts, and Vermont also have been below the 2012
PM2.5 NAAQS since 2005-2007.
At specific monitors in Maine, the highest 24-hour mean value
satisfying minimum data completion criteria was 25 [micro]g/m\3\ in
2016 at a monitor in Rumford in Oxford County. The highest annual mean
value satisfying minimum data completion criteria was 9 [micro]g/m\3\
in 2014 at a monitor in Madawaska in Aroostook County.\10\
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\10\ 24-hour and annual PM2.5 monitor values for
individual monitoring sites throughout Maine are available at
www.epa.gov/outdoor-air-quality-data/monitor-values-report.
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Second, Maine's sources are well-controlled. Maine's July 2016
submission indicates that the state has many SIP-approved rules and
programs that limit emissions of PM2.5 and PM2.5
precursors and the interstate transport of pollution, including 06-096
Code of Maine Regulations (CMR) Chapter 102, ``Open Burning
Regulation'' (73 FR 9459, February 21, 2008); 06-096 CMR Chapter 103,
``Fuel Burning Equipment Particulate Emission Standard'' (50 FR 7770,
February 26, 1985); and Chapter 145, ``NOX Control Program''
(70 FR 11879, March 10, 2005), as well the state's Title V permitting
program (38 MRSA Sec. 353-A; 06-096 CMR Chapter 140, which was
approved by EPA on October 18, 2001 (66 FR 52874)).
It should also be noted that Maine is not in the CSAPR program
because EPA analyses show that the state does not emit NOX
at a level that contributes significantly to non-attainment or
interferes with maintenance of the 1997 and 2006 PM2.5 NAAQS
in any other state.
For the reasons explained herein, EPA agrees with Maine's
conclusions and proposes to determine that Maine will not significantly
contribute to nonattainment or interfere with maintenance of the 2012
PM2.5 NAAQS
[[Page 39964]]
in any other state. Therefore, EPA is proposing to approve the July
2016 infrastructure SIP submission from Maine with regard to prongs 1
and 2 of CAA section 110(a)(2)(D)(i)(I) for the 2012 PM2.5
NAAQS.
Sub-Element 2: 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. One way for a state to meet this requirement, specifically with
respect to in-state sources and pollutants that are subject to PSD
permitting, is through a comprehensive PSD permitting program that
applies to all regulated NSR pollutants and that satisfies the
requirements of EPA's PSD implementation rules. 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 last approved revisions to Maine's NNSR
regulations on February 14, 1996 (61 FR 5690).
To meet the requirements of Prong 3, Maine DEP cites to its PSD
permitting programs under 06-096 CMR Chapter 115, ``Major and Minor
Source Air Emission License Regulations,'' to ensure that new and
modified major sources of PM2.5, SO2, and
NOX emissions do not contribute significantly to
nonattainment, or interfere with maintenance, of those standards. As
noted above in our discussion of Element C, Maine's PSD program fully
satisfies the requirements of EPA's PSD implementation rules.
Consequently, we are proposing to approve Maine's infrastructure SIP
submission for the 2012 PM2.5 NAAQS related to section
110(a)(2)(D)(i)(II) Prong 3 for the reasons discussed under Element C.
Sub-Element 3: Section 110(a)(2)(D)(i)(II)--Visibility Protection
(Prong 4)
With regard to applicable requirements for visibility protection of
section 110(a)(2)(D)(i)(II), states are subject to visibility and
regional-haze program requirements under part C of the CAA (which
includes sections 169A and 169B). EPA's 2009, 2011, and 2013 memoranda
recommend that these requirements can be satisfied by an approved SIP
addressing reasonably attributable visibility impairment, if required,
or an approved SIP addressing regional haze. 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. EPA approved Maine's Regional
Haze SIP on April 24, 2012 (77 FR 24385). Accordingly, EPA proposes
that Maine has met the visibility protection requirements of
110(a)(2)(D)(i)(II) for the 2012 PM2.5 NAAQS.
Sub-Element 4: Section 110(a)(2)(D)(ii)--Interstate Pollution Abatement
This sub-element requires each SIP to contain provisions requiring
compliance with requirements of 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.'' 06-096 CMR Chapter 115,
Sec. IX(E)(2). These provisions are consistent with EPA's PSD
regulations and require notice to affected states of a determination to
issue a draft PSD permit. Regarding section 126(b), no source or
sources within the state are the subject of an active finding with
respect to the 2012 PM2.5 NAAQS. Consequently, EPA proposes
to approve Maine's infrastructure SIP submittals for this sub-element
with respect to the 2012 PM2.5 NAAQS.
Sub-Element 5: Section 110(a)(2)(D)(ii)--International Pollution
Abatement
This sub-element requires each SIP to contain provisions requiring
compliance with the applicable requirements of CAA Sec. 115 relating
to international pollution abatement. There are no final findings under
section 115 against Maine with respect to the 2012 PM2.5
NAAQS. Therefore, EPA proposes that Maine has met the applicable
infrastructure SIP requirements of section 110(a)(2)(D)(ii) related to
section 115 for the 2012 PM2.5 NAAQS.
E. Section 110(a)(2)(E)--Adequate Resources
This section requires each state to provide for personnel, funding,
and legal authority under state law to carry out its SIP and related
issues. In addition, Section 110(a)(2)(E)(ii) requires each state to
comply with the requirements with respect to state boards under 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
NAAQS. This last sub-element, however, is inapplicable 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 to 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 2012 PM2.5 NAAQS.
Additionally, state law provides Maine 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 DEP states that
these funding sources provide it with adequate resources to carry out
the SIP. Therefore, EPA proposes that Maine has met the infrastructure
SIP requirements of this
[[Page 39965]]
portion of section 110(a)(2)(E) with respect to the 2012
PM2.5 NAAQS.
Sub-Element 2: State Board Requirements Under Section 128 of the CAA
Section 110(a)(2)(E) also requires each SIP to provide requirements
that the State comply with the state board requirements of section 128
of the CAA. Section 128(a) 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.
As mentioned earlier, the 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 Memorandum, 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). EPA
proposes to find that these provisions fulfill the requirement that at
least a majority of Board members represent the public interest, but do
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. Furthermore, section 341-C is not
currently in Maine's SIP. By letter dated March 1, 2018 (extended to
apply to the 2012 PM2.5 NAAQS in an email dated July 17,
2018), DEP committed to revise section 341-C to address the CAA Sec.
128(a)(1) 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, for inclusion in the
SIP, the necessary provisions to EPA within one year of EPA final
action on its infrastructure SIPs for the 2008 lead (Pb), 2008 ozone,
and 2010 nitrogen dioxide (NO2) NAAQS. Final action on these
SIPs was published on June 18, 2018 (83 FR 28157). Consequently, EPA
proposes to conditionally approve Maine's infrastructure SIP submittal
for this requirement of CAA Sec. 128(a)(1) for the 2012
PM2.5 NAAQS.
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.'' As EPA has explained in other infrastructure SIP actions,
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
DEP Commissioner are not reviewable by the Board, but rather may be
appealed directly to Maine Superior Court. For this reason, EPA
interprets the conflict of interest requirement of CAA Sec. 128(a)(2)
to be applicable in Maine to both Board members and the DEP
Commissioner.
In a recent 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 Sec. 128(a)(2) requirement for Maine with respect to Board
members, and EPA approved both statutes into the Maine SIP. 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 Sec.
128(a)(2) with respect to Board members for the 2012 PM2.5
NAAQS for the same reasons discussed in the infrastructure SIP action
for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.
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,
the same conflict-of-interest statute to which the Board is subject. In
the above-referenced infrastructure SIP action, EPA also determined
that together 5 MRSA Sec. 18 (which is in the Maine SIP) and 38 MRSA
Sec. 341-A(3)(D) (which is not currently in the SIP) satisfy the
conflict of interest requirement with respect to the DEP Commissioner.
See 83 FR 28157; 83 FR 12905, 12912. For the same reasons discussed in
the infrastructure SIP action for the 2008 Pb, 2008 ozone, and 2010
NO2 NAAQS, EPA proposes that together the two state statutes
would also satisfy the conflict of interest requirement with respect to
the DEP Commissioner for the 2012 PM2.5 NAAQS. While 38 MRSA
Sec. 341-A(3)(D) is not currently in the SIP, Maine DEP has already
committed to submitting it to EPA for inclusion within one year of
EPA's final action on Maine's infrastructure SIP submissions for the
2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. See 83 FR 28157.
Consequently, EPA proposes to conditionally approve Maine's
infrastructure SIP submissions for the conflict of interest requirement
of CAA Sec. 128(a)(2) with respect to the DEP Commissioner for the
2012 PM2.5 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. Lastly, the reports shall be available at reasonable times
for public inspection.
[[Page 39966]]
Maine's infrastructure submittal references several existing state
regulations previously approved by EPA that require sources to monitor
emissions and submit reports. The first reference is to 06-096 CMR
Chapter 115, ``Major and Minor Source Air Emission License
Regulations.'' This regulation contains compliance assurance
requirements for licensed sources and stipulates that licenses shall
include the following compliance assurance elements: (a) A description
of all required monitoring and analysis procedures or test methods
required under the requirements applicable to the source; (b) A
description of all recordkeeping requirements; and (c) A description of
all reporting requirements. The second reference is to 06-096 CMR
Chapter 117, ``Source Surveillance.'' This regulation specifies which
air emission sources 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. In addition,
Maine cites its regulations implementing its operating permit program
pursuant to 40 CFR part 70: 06-096 CMR Chapter 140, ``Part 70 Air
Emission License Regulations.'' These regulations, although not in the
SIP, 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. Chapter 140 contains compliance assurance
requirements regarding monitoring and reporting for licensed sources
requiring a Part 70 air emission license. The regulation was approved
by EPA on October 18, 2001 (66 FR 52874). While Chapter 140 and the
referenced provisions of Chapter 115 are not formally approved into
Maine's SIP, they are legal mechanisms the state can use to assure the
enforcement of the monitoring requirements approved in the SIP.
Regarding the section 110(a)(2)(F) requirements that the SIP
provide for the 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 DEP uses a web-based electronic reporting system, the Maine Air
Emissions Inventory Reporting System (``MAIRIS''), for this purpose
that allows it to package and electronically submit reported emissions
data to EPA under the national emission inventory (NEI) program. NEI
data are available to the public. See www.epa.gov/air-emissions-inventories/national-emissions-inventory-nei. The MAIRIS system is
structured to electronically correlate reported emissions with permit
conditions and other applicable standards, and identify all
inconsistencies and potential compliance concerns.
Furthermore, pursuant to DEP's EPA-approved regulations, ``Except
as expressly made confidential by law; the commissioner shall make all
documents available to the public for inspection and copying including
the following: 1. All applications or other forms and documents
submitted in support of any license application: 2. All correspondence,
into or out of the Department, and any attachments thereto . . . .''
See 06-096 CMR Chapter 1, Sec. 6(A). Furthermore, ``The Commissioner
shall keep confidential only those documents which may remain
confidential pursuant to 1 MRSA Section 402.'' Id. Sec. 6(B). In its
July 6, 2016, submittal, DEP certified that, ``[e]xcept as specifically
exempted by the Maine statute (1 MRSA Chapter 13 Public Records and
Proceedings), Maine makes all records, reports or information obtained
by the MEDEP or referred to at public hearings available to the
public.'' Maine DEP further certified therein that the information
submitted to Maine DEP is ``available to the public at reasonable times
for public inspection pursuant to Maine law.'' By letter dated March 1,
2018 (extended to apply to the 2012 PM2.5 NAAQS in an email
dated July 17, 2018), Maine further certified that Maine's Freedom of
Access law does not include any exceptions that apply to stationary
source emissions. For these reasons, we propose to find that Maine
satisfies the requirement that emissions statements be available at
reasonable times for public inspection.
Finally, in the March 1, 2018, letter (extended to apply to the
2012 PM2.5 NAAQS in an email dated July 17, 2018), DEP also
certified 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 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.''). For the above reasons, EPA proposes to approve
Maine's submittals for this requirement of section 110(a)(2)(F) for the
2012 PM2.5 NAAQS.
G. Section 110(a)(2)(G)--Emergency Powers
This section requires that a plan provide for state authority
comparable 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 DEP's July 6, 2016, submittal and a
March 1, 2018, letter (extended to apply to the 2012 PM2.5
NAAQS in an email dated July 17, 2018) 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 Maine 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 Maine 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,
[[Page 39967]]
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 Maine
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.
Second, in its March 1, 2018, letter, Maine DEP also cites to 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 PM2.5, or PM2.5
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 March 1,
2018, letter, 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.''
Third, in the unlikely event that air emissions are creating a
substantial or immediate threat to the public health, safety or to the
environment without violating any DEP law, regulation, order, or
permit, emergency authority to issue an order to restrain a source may
also be exercised pursuant to 37-B MRSA Sec. 742, ``Emergency
Proclamation.'' Maine explains that the DEP Commissioner can notify the
Governor of an imminent ``disaster,'' and the Governor can then
exercise authority to ``declare a state of emergency in the State or
any section of the State.'' See 37-B MRSA Sec. 742(1)(A). State law
defines ``disaster'' in this context to mean ``the occurrence or
imminent threat of widespread or severe damage, injury or loss of life
or property resulting from any natural or man-made cause, including,
but not limited to . . . air contamination.'' Id. Sec. 703(2). Upon
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), or ``[t]ake whatever action is necessary to abate, clean
up or mitigate whatever danger may exist within the affected area,''
id. Sec. 742(1)(C)(12). Thus, even if there may otherwise be no
violation of a DEP-administered or -issued law, regulation, order, or
permit, state authorities exist to restrain the source.
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 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 a state to submit for EPA
approval a contingency plan (also known as an emergency episode plan)
to implement the air agency's emergency episode authority for any Air
Quality Control Region (AQCR) within the state that is classified as
Priority I, IA, or II for certain pollutants. See 40 CFR 51.150. For
classifications for Maine, see 40 CFR 52.1021. AQCRs classified as
Priority III do not require contingency plans. See 40 CFR 51.152(c). In
general, contingency plans for Priority I, IA, and II areas must meet
the applicable requirements of 40 CFR part 51, subpart H (40 CFR 51.150
through 51.153) (``Prevention of Air Pollution Emergency Episodes'')
for the relevant NAAQS, if the NAAQS is covered by those regulations.
In the case of PM2.5, EPA has not promulgated regulations
that provide the ambient levels to classify different priority levels
for the 2012 standard (or any PM2.5 NAAQS). For the 2006
PM2.5 NAAQS, EPA's 2009 Guidance recommends that states
develop emergency episode plans for any area that has monitored and
recorded 24-hour PM2.5 levels greater than 140 [mu]g/m\3\
since 2006. EPA's review of Maine's certified air quality data in AQS
indicates that the highest 24-hour PM2.5 level recorded
since 2006 was 83.3 [mu]g/m\3\, which occurred in 2017 in the town of
Madawaska in Aroostook County.\11\ Therefore, EPA proposes that a
specific contingency plan from Maine for PM2.5 is not
necessary. Furthermore, although not expected, if PM2.5
conditions in Maine were to change, Maine DEP has general authority to
order a source to reduce or discontinue air pollution as required to
protect the public health or safety or the environment, as discussed
earlier. In addition, as a matter of practice, Maine posts on the
internet daily forecasted PM2.5 levels through the EPA
AirNow and EPA Enviroflash systems. Information regarding these two
systems is available on EPA's website at www.airnow.gov. When levels
are forecast to exceed the 24-hour PM2.5 standard in Maine,
notices are sent out to Enviroflash participants, 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 for contingency plans in 40 CFR 51.152.
---------------------------------------------------------------------------
\11\ 24-hour and annual PM2.5 monitor values for
individual monitoring sites throughout Maine are available at
www.epa.gov/outdoor-air-quality-data/monitor-values-report.
---------------------------------------------------------------------------
Therefore, EPA proposes that Maine, through the combination of
statutes and regulations discussed above and participation in EPA's
AirNow program, meets the applicable infrastructure SIP requirements of
section 110(a)(2)(G) with respect to the 2012 PM2.5 NAAQS.
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 into account changes in the
NAAQS or availability of improved methods for attaining the NAAQS and
whenever the EPA finds that the SIP is substantially inadequate.
To address this requirement, 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
[[Page 39968]]
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, Maine 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(2); see also id. Sec. 585-A (recognizing DEP's rulemaking authority
to propose SIP revisions). These general authorizing 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 availability of
improved methods for attaining the NAAQS and whenever the EPA finds
that the SIP is substantially inadequate.
Consequently, EPA proposes that Maine meets the infrastructure SIP
requirements of CAA section 110(a)(2)(H) for the 2012 PM2.5
NAAQS.
I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan Revisions
Under Part D
The CAA requires that each plan or plan revision for an area
designated as a nonattainment area meet the applicable requirements of
part D of the CAA. Part D relates to nonattainment areas. EPA has
determined that section 110(a)(2)(I) is not applicable to the
infrastructure SIP process. Instead, 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
The evaluation of the submission from Maine with respect to the
requirements of CAA section 110(a)(2)(J) is described below.
Sub-Element 1: Consultation With Government Officials
States must provide a process for consultation with local
governments and Federal Land Managers (FLMs) in carrying out NAAQS
implementation requirements.
Pursuant to state law, Maine DEP is authorized to, among other
things, ``educate the public on natural resource use, requirements and
issues.'' See 38 MRSA Sec. 341-A(1). 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,'' id. 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). Furthermore, pursuant to Maine's EPA-approved regulations,
Maine DEP is required 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 06-096 CMR Chapter 115, Sec. IX(E)(3)
(approved March 23, 1993 (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; 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 Procedures 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 has met the infrastructure SIP requirements
of this portion of section 110(a)(2)(J) with respect to the 2012
PM2.5 NAAQS.
Sub-Element 2: Public Notification
Section 110(a)(2)(J) also requires states to 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 elsewhere in this notice, state law directs Maine DEP
to, among other things, ``prevent, abate and control the pollution of
the air . . . improve and prevent diminution of the natural environment
of the State[, and] protect and enhance the public's right to use and
enjoy the State's natural resources.'' See 38 MRSA Sec. 341-A(1).
State law also authorizes Maine DEP to ``educate the public on natural
resource use, requirements and issues. Id. Sec. 341-A(1). To that end,
Maine DEP makes real-time and historical air quality information
available on its website.
The agency also provides extended-range air-quality forecasts,
which give the public advanced notice of air quality events. This
advance notice allows the public to limit their exposure to unhealthy
air and enact a plan to reduce pollution at home and at work. Maine DEP
forecasts daily ozone and particle levels and issues these forecasts to
the media and to the public via its website, telephone hotline, and
email. Alerts include information about the health implications of
elevated pollutant levels and list actions to reduce emissions and to
reduce the public's exposure. In addition, Air Quality Data Summaries
of the year's air-quality monitoring results are issued annually and
posted on the Maine DEP Bureau of Air Quality website. Maine is also an
active partner in EPA's AirNow and EnviroFlash air quality alert
programs.
EPA proposes that Maine has met the infrastructure SIP requirements
of this portion of section 110(a)(2)(J) with respect to the 2012
PM2.5 NAAQS.
Sub-Element 3: PSD
State plans must meet the applicable requirements of part C of the
CAA related to PSD. Maine's PSD program in the context of
infrastructure SIPs has already been discussed in sections 110(a)(2)(C)
and 110(a)(2)(D)(i)(II) and, as we have noted, fully satisfies the
requirements of EPA's PSD implementation rules. Consequently, we
propose to approve the PSD sub-element of section 110(a)(2)(J) for the
2012 PM2.5 NAAQS, consistent with the actions we are
proposing for sections 110(a)(2)(C) and 110(a)(2)(D)(i)(II).
Sub-Element 4: Visibility Protection
With regard to the applicable requirements for 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 SIP submissions.
[[Page 39969]]
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 has interpreted section
110(a)(2)(K) to require a state to 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. See 2013 Memorandum at 55.
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, Maine cites
06-096 CMR Chapters 115 and 140, which 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. Chapters 115 and 140 also
require that applicants submit data related to modeling to Maine DEP.
See Email from Jeff Crawford, Maine DEP, to Alison Simcox, EPA (July
17, 2018). In its July 6, 2016, submission, Maine DEP further states
that it performs modeling, provides modeling data to EPA upon request,
and will continue to do both. 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.
EPA proposes that Maine meets the infrastructure SIP requirements
of section 110(a)(2)(K) with respect to the 2012 PM2.5
NAAQS.
L. Section 110(a)(2)(L)--Permitting Fees
This section requires SIPs to mandate that each major stationary
source pay permitting fees sufficient to cover the reasonable cost 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 (66 FR 52874). To gain this approval, Maine
demonstrated the ability to collect sufficient fees to run the program.
See 61 FR 49289, 49291 (September 19, 1996). Maine state law provides
for the assessment of application fees from air emissions sources for
permits for the construction or modification of air contaminant sources
and sets permit fees. See 38 MRSA Sec. Sec. 353-A (establishing annual
air emissions license fees), 352(2)(E) (providing that such fees ``must
be assessed to support activities for air quality control including
licensing, compliance, enforcement, monitoring, data acquisition and
administration'').
EPA proposes that Maine meets the infrastructure SIP requirements
of section 110(a)(2)(L) for the 2012 PM2.5 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's infrastructure submittal references the Maine Administrative
Procedure Act, 5 MRSA Chapter 375, and explains that it 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 (37 FR 10842), and contains intergovernmental
cooperation provisions.
EPA proposes that Maine meets the infrastructure SIP requirements
of section 110(a)(2)(M) with respect to the 2012 PM2.5
NAAQS.
IV
EPA proposes to approve Maine's July 6, 2016, infrastructure SIP
submission certifying that its current SIP is sufficient to meet the
required infrastructure elements under sections 110(a)(1) and (2) for
the 2012 PM2.5 NAAQS, with the exception of CAA section
110(a)(2)(E)(ii) regarding State Boards and Conflicts of Interest,
which we propose to conditionally approve, as described in more detail
above. EPA's proposed actions regarding these infrastructure SIP
requirements are contained in Table 1 below.
------------------------------------------------------------------------
Element 2012 PM2.5
------------------------------------------------------------------------
(A): Emission limits and other control A
measures.
(B): Ambient air quality monitoring and data A
system.
(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 A
with 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........................... CA
(E)3: Necessary assurances with respect to NA
local agencies.
(F): Stationary source monitoring system..... A
(G): Emergency power......................... A
(H): Future SIP revisions.................... A
(I): Nonattainment area plan or plan NG
revisions under part D.
(J)1: Consultation with government officials. A
(J)2: Public notification.................... A
(J)3: PSD.................................... A
(J)4: Visibility protection.................. NG
(K): Air quality modeling and data........... A
(L): Permitting fees......................... A
(M): Consultation and participation by A
affected local entities.
------------------------------------------------------------------------
In the above table, the key is as follows:
------------------------------------------------------------------------
------------------------------------------------------------------------
A................................. Approve.
CA................................ Conditionally approve.
NA................................ Not applicable.
NG................................ Not germane to infrastructure SIPs.
------------------------------------------------------------------------
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. As noted in Table 1, EPA is
proposing to conditionally approve one portion of Maine's July 2016
infrastructure SIP submission for the 2012 PM2.5 NAAQS
pertaining to Element E(2) regarding State Boards and Conflicts of
Interest.
Under section 110(k)(4) of the Act, EPA may conditionally approve a
plan based on a commitment from the State to adopt specific enforceable
measures by a date certain, but not later than 1 year from the date of
approval. If EPA conditionally approves the commitment
[[Page 39970]]
in a final rulemaking action, the State must meet its commitment to
submit an update to its State Board rules that fully remedies the
deficiency mentioned above under element E. If the State fails to do
so, this action will become a disapproval one year from the date of
final approval. EPA will notify the State by letter that this action
has occurred. At that time, this commitment will no longer be a part of
the approved Maine SIP. EPA subsequently will publish a document in the
Federal Register notifying the public that the conditional approval
automatically converted to a disapproval. If the State meets its
commitment, within the applicable time frame, the conditionally
approved submission will remain a part of the SIP until EPA takes final
action approving or disapproving the submission. If EPA disapproves the
new submittal, the conditionally approved infrastructure SIP elements
will also be disapproved at that time. If EPA approves the submittal,
the conditionally approved infrastructure SIP elements will be fully
approved in their entirety and replace the conditionally approved
program in the SIP.
If the conditional approval is converted to a disapproval, the
final disapproval triggers the Federal implementation plan (FIP)
requirement under section 110(c).
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 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);
This action 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: August 6, 2018.
Alexandra Dunn,
Regional Administrator, EPA Region 1.
[FR Doc. 2018-17247 Filed 8-10-18; 8:45 am]
BILLING CODE 6560-50-P
