Air Plan Approval; Maine; Infrastructure State Implementation Plan Requirements for the 2010 Sulfur Dioxide NAAQS, 66184-66196 [2018-27773]
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Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Proposed Rules
architectural works are considered
‘‘works of the visual arts’’ for purposes
of registration, and as such, they may be
registered in Class VA. It also improves
the organization and readability of the
regulation by removing superfluous
references and moving the text of two
footnotes into the main body of the
regulation. See 37 CFR 202.11(a), (b)(1).
List of Subjects in 37 CFR Part 202
Copyright.
Proposed Regulations
For the reasons set forth in the
preamble, the Copyright Office is
proposing to amend 37 CFR part 202 as
follows:
PART 202—PREREGISTRATION AND
REGISTRATION OF CLAIMS TO
COPYRIGHT
1. The authority citation for part 202
continues to read as follows:
■
Authority: 17 U.S.C. 408(f), 702.
2. In § 202.3, add a sentence at the end
of paragraph (b)(1)(iii) to read as
follows:
■
§ 202.3
Registration of copyright.
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(b) * * *
(1) * * *
(iii) * * * This class also includes
published and unpublished
architectural works.
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■ 3. Amend § 202.11 as follows:
■ a. Revise paragraph (a).
■ b. Revise paragraphs (b)(1) and (2).
■ c. Remove paragraph (c)(2) and
redesignate paragraph (c)(5) as (c)(2).
■ d. Revise paragraphs (c)(3) and (c)(4).
■ e. Add new paragraph (c)(5).
The revisions and additions read as
follows:
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§ 202.11
Architectural works.
(a) General. This section prescribes
rules pertaining to the registration of
architectural works.
(b) Definitions. (1) For the purposes of
this section, the term building means
humanly habitable structures that are
intended to be both permanent and
stationary, such as houses and office
buildings, and other permanent and
stationary structures designed for
human occupancy, including but not
limited to churches, museums, gazebos,
and garden pavilions.
(2) Unless otherwise specified, all
other terms have the meanings set forth
in §§ 202.3 and 202.20.
(c) * * *
(3) Registration limited to one
architectural work. For published and
unpublished architectural works, an
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application may cover only one
architectural work. Multiple
architectural works may not be
registered using one application. For
works such as tract housing, one house
model constitutes one work, including
all accompanying floor plan options,
elevations, and styles that are applicable
to that particular model. Where dual
copyright claims exist in technical
drawings and the architectural work
depicted in the drawings, any claims
with respect to the technical drawings
and architectural work must be
registered separately.
(4) Online application. (i) The
applicant must complete and submit the
Standard Application. The application
should identify the title of the building.
If the architectural work was embodied
in unpublished plans or drawings on or
before December 1, 1990, and if the
building was constructed before January
1, 2003, the application should also
provide the date that the construction
was completed.
(ii) In an exceptional case, the
Copyright Office may waive the online
filing requirement set forth in paragraph
(c)(4)(i) of this section, subject to such
conditions as the Associate Register and
Director of the Office of Registration
Policy and Practice may impose on the
applicant.
(5) Deposit requirements. (i) For
designs of constructed or unconstructed
buildings, the applicant must submit
one complete copy in a visually
perceptible format of the most finished
form of an architectural drawing
showing the overall form of the building
(i.e., exterior elevations of the building
when viewed from the front, rear, and
sides), and any interior arrangements of
spaces and/or design elements in which
copyright is claimed (i.e., walls or other
permanent structures that divide the
interior into separate rooms and spaces).
The deposit should disclose the name(s)
of the architect(s) and draftsperson(s)
and the building site, if known. For
designs of constructed buildings, the
applicant also must submit identifying
material in the form of photographs
complying with § 202.21, which clearly
show several exterior and interior views
of the architectural work being
registered.
(ii) The deposit may be submitted in
any form that allows the Copyright
Office to access, perceive, and examine
the entire copyrightable content of the
work being registered, including by
uploading the complete copy and
identifying material in an acceptable file
format to the Office’s electronic
registration system. Deposits uploaded
to the electronic registration system will
be considered solely for the purpose of
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registration under section 408 of title 17
of the United States Code, and will not
satisfy the mandatory deposit
requirement under section 407 of title
17 of the United States Code.
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■ 4. Amend § 202.20 as follows.
■ a. Add paragraph (c)(2)(i)(M).
■ b. Remove and reserve paragraph
(c)(2)(xviii).
The addition reads as follows:
§ 202.20 Deposit of copies and
phonorecords for copyright registration.
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(c) * * *
(2) * * *
(i) * * *
(M) Architectural works, for which
the deposit must comply with the
requirements set forth in § 202.11.
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Dated: December 19, 2018.
Regan A. Smith,
General Counsel and Associate Register of
Copyrights.
[FR Doc. 2018–27866 Filed 12–21–18; 8:45 am]
BILLING CODE 1410–30–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R01–OAR–2018–0637; FRL–9987–95–
Region 1]
Air Plan Approval; Maine;
Infrastructure State Implementation
Plan Requirements for the 2010 Sulfur
Dioxide NAAQS
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 Maine that
addresses the infrastructure and
interstate transport requirements of the
Clean Air Act (CAA or Act) for the 2010
sulfur dioxide (SO2) National Ambient
Air Quality Standards (NAAQS). 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 is being taken under the Clean
Air Act.
DATES: Written comments must be
received on or before January 25, 2019.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R01–
OAR–2018–0637 at https://
www.regulations.gov, or via email to
SUMMARY:
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dahl.donald@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
making effective comments, please visit
https://www.epa.gov/dockets/
commenting-epa-dockets. Publicly
available docket materials are available
at https://www.regulations.gov or at the
U.S. Environmental Protection Agency,
EPA Region 1, 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:
Donald Dahl, Air Permits, Toxics, and
Indoor Programs Unit, U.S.
Environmental Protection Agency, EPA
Region 1, 5 Post Office Square—Suite
100, (Mail Code OEP05–2), Boston, MA
02109—3912, tel. (617) 918–1657, email
dahl.donald@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA.
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Table of Contents
I. Background and Purpose
II. What guidance is EPA using to evaluate
this SIP submission?
III. State Submission and EPA’s Analysis
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
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Construction or Modification of
Stationary Sources
1. Sub-Element 1: Enforcement of SIP
Measures
2. Sub-Element 2: PSD Program for Major
Sources and Major Modifications
3. Sub-Element 3: Preconstruction
Permitting for Minor Sources and Minor
Modifications
D. Section 110(a)(2)(D)—Interstate
Transport
1. Sub-Element 1: Section
110(A)(2)(D)(I)(I)—Contribute to
Nonattainment (Prong 1) and Interfere
With Maintenance of the NAAQS (Prong
2)
a. State’s Analysis
b. EPA’s Prong 1 Evaluation
c. EPA’s Prong 2 Evaluation
2. Sub-Element 2: Section
110(a)(2)(D)(i)(II)—PSD (prong 3)
3. Sub-Element 3: Section
110(a)(2)(D)(i)(II)—Visibility Protection
(Prong 4)
4. Sub-Element 4: Section 110(a)(2)(D)(ii)—
Interstate Pollution Abatement
5. Sub-Element 5: Section 110(a)(2)(D)(ii)—
International Pollution Abatement
E. Section 110(a)(2)(E)—Adequate
Resources
1. Sub-Element 1: Adequate Personnel,
Funding, and Legal Authority Under
State Law To Carry Out Its SIP, and
Related Issues
2. Sub-Element 2: State Board
Requirements Under Section 128 of the
CAA
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
1. Sub-Element 1: Consultation With
Government Officials
2. Sub-Element 2: Public Notification
3. Sub-Element 3: PSD
4. Sub-Element 4: 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
On April 19, 2017, the Maine
Department of Environmental Protection
(ME DEP) submitted its infrastructure
SIP for the 2010 SO2 NAAQS. Under
sections 110(a)(1) and (2) of the CAA,
states are required to submit
infrastructure SIPs to ensure that SIPs
provide for implementation,
maintenance, and enforcement of the
NAAQS, including the 2010 SO2
NAAQS.
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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
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
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scope of this rulemaking?’’ See 79 FR
27241 at 27242–45.
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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,
guidance document entitled ‘‘Guidance
on Infrastructure State Implementation
Plan (SIP) Elements under CAA
Sections 110(a)(1) and 110(a)(2)’’ (2013
guidance).1
With respect to Section
110(a)(2)(D)(i), sometimes referred to as
the Good Neighbor provision, EPA notes
that although SO2 is emitted from a
similar universe of point and nonpoint
sources, interstate transport of SO2 is
unlike the transport of fine particulate
matter (PM2.5) or ozone in that SO2 is
not a regional pollutant and does not
commonly contribute to widespread
nonattainment over a large (and often
multi-state) area. The transport of SO2 is
more analogous to the transport of lead
(Pb) because its physical properties
result in localized pollutant impacts
very near the emissions source.
However, ambient concentrations of SO2
do not decrease as quickly with distance
from the source as Pb, because of the
physical properties and typical release
heights of SO2. Emissions of SO2 travel
farther and have wider ranging impacts
than emissions of Pb, but do not travel
far enough to be treated in a manner
similar to ozone or PM2.5. The
approaches that EPA has adopted for
ozone or PM2.5 transport are too
regionally focused and the approach for
Pb transport is too tightly circumscribed
to the source. SO2 transport is therefore
a unique case and requires a different
approach. Given the physical properties
of SO2, EPA selected the ‘‘urban
scale’’—a spatial scale with dimensions
from 4 to 50 kilometers (km) from point
sources—to evaluate these SIP
submissions for SO2 transport.2 As such,
1 This memorandum and other referenced
guidance documents and memoranda are included
in the docket for today’s action.
2 For the definition of spatial scales for SO ,
2
please see 40 CFR part 58, appendix D, section 4.4
(‘‘Sulfur Dioxide (SO2) Design Criteria’’). For further
discussion on how EPA is applying these
definitions with respect to interstate transport of
SO2, see EPA’s proposal on Connecticut’s SO2
transport SIP. 82 FR 21351, 21352, 21354 (May 8,
2017).
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EPA utilized an assessment up to 50 km
from point sources when considering
possible transport of SO2 from Maine to
downwind states.
As discussed in Section III.D of this
document, EPA first reviewed ME DEP’s
analysis to assess how Maine evaluated
the transport of SO2 to other states, the
types of information used in the
analysis and the conclusions drawn by
the ME DEP. EPA then conducted a
weight of evidence analysis, including
ME DEP’s submission and other
available information, including air
quality, emission sources, and emission
trends within the state and in
neighboring states to which SO2
emission sources in Maine could
potentially contribute or interfere.3
III. State Submission and EPA’s
Analysis
EPA is soliciting comment on our
evaluation of ME DEP’s infrastructure
SIP submission in this notice of
proposed rulemaking (NPRM). In ME
DEP’s submission, a detailed list of
Maine Laws and previously SIPapproved 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 2010 SO2 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, e.g., Element A) 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.4 In the
context of an infrastructure SIP, EPA is
3 This proposed approval action is based on the
information contained in the administrative record
for this action, and does not prejudge any other
future EPA action that may make other
determinations regarding any of the subject states’
air quality status. Any such future actions, such as
area designations under any NAAQS, will be based
on their own administrative records and EPA’s
analyses of information that has become available
at those times. Future available information may
include, and is not limited to, monitoring data and
modeling analyses conducted pursuant to EPA’s
SO2 Data Requirements Rule (80 FR 51052, August
21, 2015) and information submitted to EPA by
states, air agencies, and third-party stakeholders
such as citizen groups and industry representatives.
4 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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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.
ME DEP statutory authority with
respect to air quality is set out in 38
Maine Revised Statutes Annotated
(‘‘MRSA’’) Chapter 4, ‘‘Protection and
Improvement of Air.’’ 5 Statutory
authority to establish emission
standards and regulations implementing
ambient air quality standards is
contained in 38 MRSA Chapter 4,
sections 585 and 585–A. Maine’s
infrastructure submittal for this element
cites Maine laws and regulations that
include enforceable emissions
limitations and other control measures,
means or techniques, as well as
schedules and timetables for
compliance to meet the applicable
requirements of the CAA. For instance,
ME DEP cites 38 MRSA § 603–A, a state
law that establishes a statewide sulfur
limit of 15 parts per million (ppm) for
distillate oil and 0.5% by weight for
residual oil. On April 24, 2012, EPA
incorporated these statutory limits into
Maine’s SIP. See 77 FR 24385. In
addition, ME DEP cited its SIP approved
new source review permitting regulation
06–096 CMR Chapter 115, ‘‘Emission
License Regulations’’ last amended on
August 1, 2016. See 81 FR 50353.
EPA proposes that Maine meets the
infrastructure SIP requirements of
section 110(a)(2)(A) with respect to the
2010 SO2 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
5 ME 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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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, ME
DEP operates an air quality monitoring
network, and EPA approved the state’s
most recent Annual Air Monitoring
Network Plan for SO2 on October 25,
2018.6 Furthermore, ME 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 ME
DEP meets the infrastructure SIP
requirements of section 110(a)(2)(B)
with respect to the 2010 SO2 NAAQS.
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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.
1. Sub-Element 1: Enforcement of SIP
Measures
ME DEP identifies the sources of its
authority to enforce the measures it cites
to satisfy Element A as 38 MRSA
Section 347–A, ‘‘Violations,’’ 38 MRSA
Section 347–C, ‘‘Right of inspection and
entry,’’ 38 MRSA Section 348, ‘‘Judicial
Enforcement,’’ and 38 MRSA Section
349, ‘‘Penalties,’’ 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
6 See EPA approval letter located in the docket for
this action.
7 EPA also analyzed potential impacts from Maine
sources on Massachusetts, which is on the other
side of NH and is approximately 24 km from Maine.
There are no sources in Massachusetts within 50
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Chapter 115 ‘‘Major and Minor Source
Air Emission License Regulations,’’
which requires best available control
technology (BACT) controls for PSD
sources, including for SO2. EPA
proposes to find that Maine meets the
enforcement requirement of section
110(a)(2)(C) with respect to the 2010
SO2 NAAQS.
2. Sub-Element 2: PSD Program for
Major Sources and Major Modifications
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. ME DEP’s EPAapproved PSD rules, contained at 06–
906 CMR Chapter 100 ‘‘Definitions
Regulations’’ and 06–096 CMR Chapter
115 ‘‘Major and Minor Source Air
Emission License Regulations,’’ contain
provisions that address applicable
requirements for all regulated NSR
pollutants.
In our proposal on March 26, 2018
regarding the submittal of infrastructure
SIPS for the 2008 Pb, 2008 ozone, and
2010 NO2 NAAQS by the ME DEP, we
explained how Maine’s SIP meets this
sub-element for PSD. See 83 FR 12905.
On June 18, 2018, we took final action
approving those multi-pollutant
infrastructure SIP submissions,
including finding that Maine’s SIP
satisfies this sub-element. See 83 FR
28157. Maine’s PSD SIP has not
changed since our June 18, 2018
approval, and no new PSD requirements
have arisen; therefore, based on our
rationale contained in the March 26,
2018 document, EPA proposes to find
that Maine has met the PSD requirement
of section 110(a)(2)(C) with respect to
the 2010 SO2 NAAQS. For the purposes
of today’s rulemaking on Maine’s
infrastructure SIP, EPA reiterates that
NSR Reform is not in the scope of this
action.
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pre-construction program that regulate
emissions of the relevant NAAQS
pollutants. Maine’s minor NSR program
is contained within 06–096 CMR
Chapter 115, ‘‘Major and Minor Source
Air Emission License Regulations.’’ EPA
last approved revisions to Chapter 115
on August 1, 2016 (81 FR 50353). ME
DEP and EPA rely on 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
2010 SO2 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 2010 SO2
NAAQS.
D. Section 110(a)(2)(D)—Interstate
Transport
Section 110(a)(2)(D) of the CAA
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 in the following sections, 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.
1. Sub-Element 1: Section
110(a)(2)(D)(i)(I)—Contribute to
Nonattainment (Prong 1) and Interfere
With Maintenance of the NAAQS (Prong
2)
3. 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 (minor NSR), an
infrastructure SIP submission should
identify the existing EPA-approved SIP
provisions and/or include new
provisions that govern the minor source
In this section, we provide an
overview of Maine’s 2010 SO2 transport
analysis, as well as EPA’s evaluation of
prongs 1 and 2. Table 1 shows emission
trends for Maine and its neighboring
state New Hampshire.7 The table will be
referenced as part of EPA’s analysis.8
km of Maine that emitted over 100 tons per year of
SO2. The closest source in Maine that is over 100
tons per year of SO2 is approximately 95 km away
from Massachusetts. Maine sources are not
expected to contribute to a nonattainment area
within Massachusetts, and we do not foresee any
interference with maintenance of the 2010 SO2
NAAQS.
8 This emissions trends information was derived
from EPA’s web page https://www.epa.gov/airemissions-inventories/air-pollutant-emissionstrends-data, accessed on November 1, 2018.
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TABLE 1—STATEWIDE SO2 DATA FOR MAINE AND NEW HAMPSHIRE
[Tons per year]
State
2000
Maine ...................................................................................
New Hampshire ...................................................................
a. State’s Analysis
In Maine’s April 19, 2017
infrastructure SIP submission
addressing the 2010 SO2 NAAQS, the
state explicitly refers to the interstate
transport provision of CAA Section
110(a)(2)(D)(i). In its April 19, 2017 SIP
submittal, the ME DEP stated that
sources within Maine do not
significantly contribute to any
monitored SO2 violations in another
state. Maine based its assertion on EPA’s
air quality designations for the 2010 SO2
NAAQS and included a reference to
EPA’s Round 1 designations. See
‘‘https://www.gpo.gov/fdsys/pkg/FR2013-08-05/pdf/2013-18835.pdf’’ 78 FR
47191, August 5, 2013. Maine also
referenced its PSD permit program,
which assists the State in controlling
future emissions from new or modified
major sources.
The SIP submission addresses prong 1
of Section 110(a)(2)(D)(i) by stating that
‘‘Maine sources do not significantly
contribute to any monitored sulfur
dioxide violations in other states. . . .’’
However, the SIP submission does not
2005
57,906
68,768
2010
32,397
63,634
appear to specifically address whether
Maine interferes with maintenance of
the NAAQS in a nearby state (prong 2).
On October 29, 2018, Maine submitted
a letter to EPA clarifying the State
intended to demonstrate in its April 19,
2017 SIP submittal that it does not
interfere with maintenance of the
NAAQS in other states (prong 2).
Therefore, EPA concludes that Maine’s
submission was intended to address
both prongs of the interstate transport
provision given that the submission
refers to the entirety of CAA section
110(a)(2)(D)(i)(I).
b. EPA’s Prong 1 Evaluation
EPA proposes to find that Maine’s SIP
submittal meets the interstate transport
requirements of CAA section
110(a)(2)(D)(i)(I), prong 1 for the 2010
SO2 NAAQS, as discussed below. As
described below, we have analyzed the
air quality, emission sources and
emission trends in Maine and New
Hampshire. Based on that analysis, we
propose to find that Maine will not
significantly contribute to
SO2 reduction,
2000–2017
(%)
2017
17,020
35,716
10,447
6,401
82.0
90.7
nonattainment of the 2010 SO2 NAAQS
in any other state.
We reviewed 2015–2017 SO2
concentrations design values at
monitors with data sufficient to produce
valid 1-hour SO2 design values for
Maine and neighboring states.9 In Table
2 below, we have included monitoring
data satisfying any of the following
selection criteria: (1) All of the monitor
data from Maine; (2) the monitor with
the highest SO2 level in New
Hampshire; (3) the monitor in New
Hampshire closest to the Maine border;
and (4) all monitors in New Hampshire
within approximately 50 km of the
border. EPA reviewed these ambient air
quality data in Maine and New
Hampshire to see whether there were
any monitoring sites, particularly near
the Maine border, with elevated SO2
concentrations that might warrant
further investigation with respect to
interstate transport of SO2 from
emission sources near any given
monitor. As shown, there are no
violating design values in Maine or New
Hampshire.
TABLE 2—SO2 MONITOR VALUES FOR MAINE AND NEW HAMPSHIRE
State/area
Scenario
Maine/Portland .........................................
Maine/Hancock County ............................
Maine/Eliot a .............................................
New Hampshire/Merrimack County .........
New Hampshire/Rockingham CountyPierce Island .........................................
Approximate
distance to
Maine/New
Hampshire
border
(km)
Site ID
2013–2015
Design value
(ppb)
2014–2016
Design value
(ppb)
2015–2017
Design value
(ppb)
1
1
1
4
230050029
230090103
230310009
330131006
57
219
........................
46
12
2
b NA
20
11
1
b NA
20
9
1
b NA
15
2, 3
330150014
<1
29
22
16
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a. The Sawgrass Lane monitor collected SO2 concentration data from October 24, 2014 to April 1, 2016. The maximum 1-hour SO2 concentration observed from this monitor was 37.7 parts per billion (ppb) on January 8, 2015, when winds came from the direction of Schiller Station in
New Hampshire.
b. The DV for this site is invalid due to incomplete data for this period and is not for use in comparison to the NAAQS.
The data presented in Table 2 show
that Maine’s network of SO2 monitors
with data sufficient to produce valid 1hour SO2 design values indicates that
monitored 1-hour SO2 levels in Maine
are between 1% and 12% of the 75 parts
per billion (ppb) level of the NAAQS.
As shown, there are no Maine monitors
located within 50 km of a neighboring
state’s border. The nearest monitor is
approximately 57 km from New
Hampshire. Two monitors in New
Hampshire are located within 50 km of
the Maine border, and these monitors
recorded SO2 design values ranging
between 20% and 21% of the 2010 SO2
NAAQS. Thus, these air quality data do
not, by themselves, indicate any
9 Data retrieved from https://www.epa.gov/airtrends/air-quality-design-values#report, accessed on
November 1, 2018.
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particular location that would warrant
further investigation with respect to SO2
emission sources in Maine that might
significantly contribute to
nonattainment in the neighboring states.
However, because the monitoring
network is not necessarily designed to
find all locations of high SO2
concentrations, this observation
indicates an absence of evidence of
impact at these locations but is not
sufficient evidence by itself of an
absence of impact at all locations in the
neighboring states. We have therefore
also conducted a source-oriented
analysis. As noted, EPA finds that it is
appropriate to examine the impacts of
emissions from stationary sources in
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Maine in distances ranging from 0 km
to 50 km from the facility, based on the
‘‘urban scale’’ definition contained in
appendix D to 40 CFR part 58, Section
4.4. The list of Maine sources of 100
tons per year (tpy) or greater of SO2
within 50 km from state borders is
shown in Table 3 below.
TABLE 3—MAINE SO2 SOURCES NEAR NEIGHBORING STATES
2016 SO2
emissions
(tons) a
Maine source
Catalyst Paper Operations, Inc. in
Rumford.
S.D.
Warren
Company
in
Westbrook.
Nearest
distance to
Maine/New
Hampshire
border
846
38
198
50
Distance to nearest neighboring
state major SO2 source b
(km)
168 (Dartmouth College in Hanover, NH).
74 (Newington Station and Schiller
Station in Newington and Portsmouth, NH, respectively).
Nearest neighboring state major
source SO2
emissions c
(tons)
246 (Dartmouth College).
304 total (Newington Station (41)
and Schiller Station (263)).
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a. See https://www.maine.gov/dep/ftp/AIR/DATA/CAP_SUMMARIES/, accessed on November 1, 2018.
b. A source emitting 100 tons per year (tpy) or greater of SO2 emissions.
c. Emission data from Dartmouth College are for the year 2014. Emission data for Schiller and Newington Station are for the year 2017.
Table 3 identifies the nearest out-ofstate source emitting above 100 tpy of
SO2, because elevated levels of SO2, to
which SO2 emitted in Maine may have
a downwind impact, are most likely to
be found near such sources. The
distances to these sources are listed
because the impact of the sources in
Maine decreases with distance. In the
case of Catalyst Paper, the distance
between this source and the Maine/New
Hampshire state border is 38 km and the
nearest major SO2 source in neighboring
state New Hampshire is 168 km. With
regards to S.D. Warren, the distance
between this source and the Maine/New
Hampshire state border is 50 km and the
nearest major SO2 sources in
neighboring state New Hampshire is 74
km. This information indicates that
emissions from Maine are very unlikely
to contribute significantly to problems
with attainment of the 2010 SO2
NAAQS in New Hampshire.
EPA also reviewed the location of
sources in New Hampshire emitting
more than 100 tpy of SO2 and located
within 50 km of the Maine border and
found that the only sources that meet
these criteria are Schiller and
Newington Stations. The interaction
between these sources and sources in
Maine has been addressed in the
discussion of Table 3.
In addition to analyzing the distances
between sources emitting 100 tons per
year of SO2, EPA acknowledges that
New Hampshire, as required by the 40
CFR part 51, subpart BB (SO2 Data
Requirements Rule), provided air
quality modeling information. The New
Hampshire modeling indicated that
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emissions allowed under new, federallyenforceable emissions limits included in
state air permits for Newington and
Schiller Stations and emissions from
some other sources that were explicitly
represented in the modeling, combined
with a representative background
concentration that reflects the impact of
sources that were not explicitly
represented in the modeling, would not
result in a violation of the NAAQS in
the portions of New Hampshire, Maine,
and Massachusetts that were included
in the modeling domain.10 Given that
there are no NAAQS violations within
the modeling domain, we conclude that
sources in Maine are not significantly
contributing to NAAQS violations in the
New Hampshire or Massachusetts
portion of the domain. In addition, the
modeling provided no suggestion that
violations are occurring beyond the edge
of the modeling domain.
EPA also analyzed whether any
sources within Maine are significantly
contributing to violations in the Central
New Hampshire nonattainment area.
The Central New Hampshire
nonattainment area is approximately 20
km from the Maine state border. The
nearest Maine source with SO2
10 A detailed description of EPA’s assessment of
the modeling, and associated visualizations, are
available in Chapter 27 of the Technical Support
Document for EPA’s Intended Round 3 Area
Designations for the 2010 1-Hour SO2 Primary
National Ambient Air Quality Standard for New
Hampshire, included in this docket, number EPA–
R01–OAR–2018–0637. See 82 FR 41903 (September
5, 2017). In referencing EPA’s Intended Round 3
Area Designations, EPA is not reopening the SO2
area designations action. A notice of the final rule
for these designations was published on January 9,
2018. See 83 FR 1098.
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emissions greater than 100 tpy is in
Westbrook Maine, approximately 82 km
away. In its attainment plan for the
Central New Hampshire nonattainment
area, New Hampshire included air
dispersion modeling to establish
federally enforceable SO2 emission
limits for Merrimack Station in Bow,
New Hampshire, the main contributor to
the nonattainment area. New Hampshire
demonstrated that with these emission
limits in place there will be no NAAQS
violations within the nonattainment
area. See 82 FR 45242 (September 28,
2017).11 As already noted, recent
monitoring data from 2013–2017
indicates no NAAQS violations within
the nonattainment area. Thus, we
propose to conclude that sources in
Maine are not significantly contributing
to NAAQS violations in the
nonattainment area.
Given the localized range of potential
1-hour SO2 impacts and the analysis of
sources emitting at least 100 tpy of SO2,
along with modeling analysis provided
to EPA for other CAA purposes, EPA
proposes to conclude that SO2
emissions from Maine will not will not
contribute significantly to
nonattainment of the SO2 NAAQS in
New Hampshire and Massachusetts.
c. EPA’s Prong 2 Evaluation
Prong 2 of the good neighbor
provision requires state plans to
11 In referencing EPA’s approval of New
Hampshire’s plan and attainment demonstration for
the Central New Hampshire Nonattainment Area,
EPA is not reopening the nonattainment area plan
approval action. A notice of the final rule for the
plan approval was published on June 5, 2018. See
83 FR 25922.
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prohibit emissions that will interfere
with maintenance of a NAAQS in
another state. Given the trend of
decreased emissions from sources
within Maine to date, as shown in Table
1, and our conclusion that there are no
current violations of the SO2 NAAQS in
the portions of the neighboring states
that are near Maine, EPA believes that
a reasonable analysis of whether sources
or other emissions activity originating
within Maine interfere with its
neighboring states’ ability to maintain
the NAAQS consists of evaluating
whether these decreases in emissions
can be maintained over time.
As shown in Table 4, the combined
SO2 emissions from the two largest
categories, Fuel Combustion: Other
category (home heating oil) and Fuel
Combustion: Industrial, was 79% of
total SO2 state-wide emissions.
TABLE 4—SUMMARY OF 2014 NATIONAL EMISSIONS INVENTORY (NEI)
SO2 DATA FOR MAINE
Category
Fuel Combustion: Electric
Utilities ...............................
Fuel Combustion: Industrial ..
Fuel Combustion: Other .......
Waste Disposal and Recycling ...................................
Other Industrial Process .......
Highway Vehicles .................
Off-Highway ..........................
Miscellaneous .......................
Petroleum & Related Industries ...................................
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Total ...............................
Emissions
(tons per year)
928
4,042
4,842
627
433
152
197
40
19
11,280
When compared to the year 2014, the
SO2 emissions from both households
and industrial sources are expected to
be significantly reduced 12 due to 38
MRSA Chapter 603–A, which
established, effective as of January 1,
2018, statewide sulfur limits of 15 parts
per million (ppm) for distillate oil and
0.5% by weight for residual oil. As
stated earlier, EPA incorporated this
statute into Maine’s SIP on April 24,
2012. See 77 FR 24385.
As shown in Table 1, statewide SO2
emissions in Maine have decreased over
time. A number of factors are involved
that caused this decrease in emissions,
including the State’s adoption of 38
MRSA Chapter 603–A and the change in
capacity factors at EGUs in Maine over
time due to increased usage of natural
12 The State statute required that most industrial
sources that combust fuel oil to lower the sulfur
content from 2% to 0.5%, a 75% reduction. The
statute requires distillate oil, mainly used in homes,
to be reduced from home heating oil went from
5,000 ppm to 15 ppm by weight, a 99% reduction.
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gas to generate electricity in the region.
Actual SO2 emissions from the facilities
currently operating in Maine have
decreased between 2000 and 2017, and
EPA concludes based on this trend that
emissions originating in Maine are not
expected to interfere with the
neighboring states’ ability to maintain
the 2010 SO2 NAAQS.
Lastly, any new or modified major
sources of SO2 emissions will be
addressed by Maine’s SIP-approved
Prevention of Significant Deterioration
(PSD) program, last amended on August
1, 2016. See 81 FR 50353. Future minor
sources of SO2 emissions will be
addressed by the State’s minor new
source review permit program, last
amended on March 23, 1993. See 58 FR
15430. The permitting regulations
contained within these programs, along
with the other factors already discussed,
are expected to help ensure that ambient
concentrations of SO2 in neighboring
states will not exceed the NAAQS as a
result of new facility construction or
modification occurring in Maine.
It is also worth noting air quality
trends for concentrations of SO2 in the
Northeastern United States.13 This
region has experienced an 84% decrease
in the annual 99th percentile of daily
maximum 1-hour averages between
2000 and 2017 based on 40 monitoring
sites, and the most recently available
data for 2017 indicates that the mean
value at these sites was 12.9 ppb, which
is less than 18% of the NAAQS. When
this trend is evaluated alongside the
monitored SO2 concentrations within
Maine as well as the SO2 concentrations
recorded at monitors in New
Hampshire, EPA does not believe that
sources or emissions activity from
within Maine are significantly different
than the overall decreasing monitored
SO2 concentration trend in the
Northeast region. As a result, EPA finds
it unlikely that sources or emissions
activity from within Maine will interfere
with other states’ ability to maintain the
2010 primary SO2 NAAQS.
Based on each of factors contained in
the prong 2 maintenance analysis above,
EPA proposes to find that sources or
other emissions activity within Maine
will not interfere with maintenance of
the 2010 primary SO2 NAAQS in any
other state.
2. 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
13 See https://www.epa.gov/air-trends/sulfurdioxide-trends, accessed on November 1, 2018.
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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 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,
ME 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 emissions do not contribute
significantly to nonattainment, or
interfere with maintenance, of any
NAAQS. 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 propose to approve
Maine’s infrastructure SIP submission
for the 2010 SO2 NAAQS related to
section 110(a)(2)(D)(i)(II) Prong 3 for the
reasons cited under Element C.
3. Sub-Element 3: Section
110(a)(2)(D)(i)(II)—Visibility Protection
(Prong 4)
Prong 4 requires a state’s SIP to have
adequate provisions prohibiting
emissions in amounts that will interfere
with measures in other states’ SIPs to
protect visibility. The prong 4
requirement is closely connected to the
regional haze program under part C of
the CAA, in which states work together
in a regional planning process to
determine each state’s contribution to
the visibility impairment in that region
and agree to emission reduction
measures to improve visibility. Maine is
a member of the Mid-Atlantic/North
East Visibility Union. EPA regulations
require that a state participating in a
regional planning process include in its
regional haze SIP all measures needed
to achieve its apportionment of
emission reduction obligations agreed
upon through that process. See, e.g., 40
CFR 51.308(d)(3). Thus, a fully
approved regional haze SIP meeting the
requirements of 40 CFR 51.308 will
ensure that emissions from sources
under an air agency’s jurisdiction are
not interfering with measures required
to be included in other air agencies’
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plans to protect visibility and will,
therefore, satisfy Prong 4. EPA approved
Maine’s Regional Haze SIP on April 24,
2012 (77 FR 24385). Accordingly, EPA
proposes that Maine meets the visibility
protection requirements of
110(a)(2)(D)(i)(II) for the 2010 SO2
NAAQS.
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4. 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
ME 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). 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 2010
SO2 NAAQS. Consequently, EPA
proposes to approve Maine’s
infrastructure SIP submittals for this
sub-element with respect to the 2010
SO2 NAAQS.
5. 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 section 115 relating to
international pollution abatement.
There are no final findings under
section 115 against Maine with respect
to the 2010 SO2 NAAQS. Therefore,
EPA proposes to find that Maine meets
the applicable infrastructure SIP
requirements of section 110(a)(2)(D)(ii)
related to section 115 for the 2010 SO2
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
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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.
1. 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 § 341–H,
‘‘Departmental rulemaking,’’ 38 MRSA
§ 342, ‘‘Commissioner, duties,’’ and 38
MRSA § 581, ‘‘Declaration of findings
and intent.’’ These statutes provide the
ME DEP with the legal authority to
enforce air pollution control
requirements and carry out SIP
obligations with respect to the 2010 SO2
NAAQS. Additionally, state law
provides ME 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. The ME DEP
states that these funding sources
provide it with adequate resources to
carry out the SIP. Therefore, EPA
proposes to find that Maine meets the
infrastructure SIP requirements of this
portion of section 110(a)(2)(E) with
respect to the 2010 SO2 NAAQS.
2. Sub-Element 2: State Board
Requirements Under Section 128 of the
CAA
Section 110(a)(2)(E) also requires each
SIP to contain provisions that 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
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66191
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 ME DEP
consists of a Commissioner and a Board
of Environmental Protection (‘‘BEP’’ or
‘‘Board’’), which is an independent
authority under state law that reviews
certain permit applications in the first
instance and also renders final decisions
on appeals of permitting actions taken
by the Commissioner as well as some
enforcement decisions by the
Commissioner. Because the Board has
authority under state law to hear
appeals of some CAA permits and
enforcement orders, EPA considers that
the Board has authority to ‘‘approve’’
those permits or enforcement orders, as
recommended in the 2013 Guidance.
For this reason, and because the Board
also issues some permits directly, the
requirement of CAA section 128(a)(1)
applies to Maine—that is, that ‘‘any
board or body which approves permits
or enforcement orders 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
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
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income from persons subject to’’ air
permits and enforcement orders.
Furthermore, section 341–C is not
currently in Maine’s SIP. In a letter
dated March 1, 2018 (extended to
pertain to the 2012 SO2 NAAQS in a
letter dated October 29, 2018), the ME
DEP committed to revise section 341–C
to address the CAA section 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 section
128(a)(1) for the 2010 SO2 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 section
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 section 128(a)(2) requirement
for Maine with respect to Board
members, and EPA approved both
statutes into the Maine SIP. See 83 FR
28157 (June 18, 2018). For more
information, see 83 FR 12905, 12912
(March 26, 2018). EPA proposes to find
that Maine’s SIP also satisfies CAA
section 128(a)(2) with respect to Board
members for the 2010 SO2 NAAQS for
the same reasons.
Regarding the DEP Commissioner,
state law at 38 MRSA § 341–A(3)(D) also
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explicitly makes that official subject to
5 MRSA § 18, the same conflict-ofinterest statute to which the Board is
subject. In the above-referenced multi
pollutant infrastructure SIP action, EPA
determined that 5 MRSA § 18, which is
in the Maine SIP, and 38 MRSA § 341–
A(3)(D), which is not currently in the
SIP, together satisfy the conflict of
interest requirement with respect to the
DEP Commissioner. See 83 FR 28157
(June 18, 2018); 83 FR 12905, 12912
(March 26, 2018). While 38 MRSA
§ 341–A(3)(D) is not currently in the
SIP, ME 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 (June 18,
2018). Consequently, EPA proposes to
conditionally approve Maine’s
infrastructure SIP submissions for the
conflict of interest requirement of CAA
section 128(a)(2) with respect to the DEP
Commissioner for the 2010 SO2
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.
Maine’s infrastructure submittal
references existing state regulations
previously approved by EPA that
require sources to monitor emissions
and submit reports. First, Maine
references 06–096 CMR Chapter 115,
‘‘Major and Minor Source Air Emission
License Regulations.’’ This regulation
contains compliance assurance
requirements regarding emissions
monitoring and reporting for licensed
sources.
Maine also references 06–096 CMR
Chapter 117, ‘‘Source Surveillance,’’
which specifies air emission sources
required to install, calibrate, maintain,
and operate continuous emission
monitoring systems (CEMS) and to
submit periodic reports to EPA. Chapter
137 was approved into the SIP by EPA
on March 21, 1989 (54 FR 11524).
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In addition, Maine’s emission
statement rule, at 06–096 CMR Chapter
137, requires certain facilities to report
emissions of air pollutants on an annual
basis. EPA most recently approved
revisions to Chapter 137 into the SIP on
November 21, 2007. See 73 FR 65462.
We further note that 38 MRSA § 347–C,
‘‘Right of inspection and entry,’’
(referenced in ME DEP’s submission
with respect to enforcement under
element C) authorizes ME DEP to
inspect facilities, take samples, inspect
records, and conduct tests as
appropriate to determine compliance
with permits, orders, regulations, and
laws. Finally, by letter dated March 1,
2018 (extended to pertain to the 2010
SO2 NAAQS in a letter dated October
29, 2018), ME 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.
Regarding the section 110(a)(2)(F)(iii)
requirements that the SIP provide for
the correlation and public availability of
emission reports, the ME 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.14 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.
Pursuant to ME 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, § 6(A). Furthermore, ‘‘The
Commissioner shall keep confidential
only those documents which may
remain confidential pursuant to 1
MRSA Section 402.’’ Id. § 6(B). We also
note that the Maine Freedom of Access
Law does not expressly make emissions
statements confidential, 1 MRSA § 402,
and that, pursuant to ME DEP’s EPAapproved regulations, ‘‘[i]nformation
concerning the nature and extent of the
14 See www.epa.gov/air-emissions-inventories/
national-emissions-inventory-nei.
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emissions of any air contaminant by a
source’’—which includes emission
reports—‘‘shall not be confidential.’’ See
06–096 CMR Chapter 115, § IX(B)(1). By
letter dated March 1, 2018, extended to
pertain to the 2010 SO2 NAAQS in a
letter dated October 29, 2018, Maine
further certified that Maine’s Freedom
of Access law does not include any
exceptions that apply to stationary
source emissions.
For the above reasons, EPA proposes
to approve Maine’s submittals for the
requirements of section 110(a)(2)(F) for
the 2010 SO2 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 ME DEP’s April 19, 2017
submittal and a March 1, 2018 letter
(extended to apply to the 2010 SO2
NAAQS in a letter dated October 29,
2018) provides for authority comparable
to that in CAA section 303. The statutes
and regulations are: 38 MRSA § 347–A,
‘‘Emergency Orders,’’ 38 MRSA § 348,
‘‘Judicial Enforcement,’’ 37–B MRSA
§ 742, ‘‘Emergency Proclamation,’’ 38
MRSA § 591, ‘‘Prohibitions,’’ and 06–
096 CMR Chapter 109, ‘‘Emergency
Episode Regulations.’’ In our proposal to
approve this requirement for Maine’s
2012 PM2.5 infrastructure SIP
submission, we explained how this
combination of authorities provides ME
DEP with authority comparable to that
in CAA section 303. See 83 FR 39957,
39966–39967 (August 13, 2018). These
statutes and the regulation apply in the
same manner to SO2 emissions as they
do to particulate matter emissions.
Accordingly, for the reasons contained
in our proposal to approve this element
for the 2012 PM2.5 infrastructure SIP, we
propose to find that this combination of
state statutes and regulations provide for
authority comparable to that in CAA
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section 303 for the 2010 SO2
infrastructure SIP.
Section 110(a)(2)(G) also requires that,
for any NAAQS, states have an
approved contingency plan for any Air
Quality Control Region (AQCR) within
the state that is classified as Priority I,
IA, or II. See 40 CFR 51.152(c). As
relevant to this proposed rulemaking
action, three of the five AQCRs in Maine
are classified as IA or II for sulfur oxides
(SOX). See 40 CFR 52.1021.
Consequently, Maine’s SIP must contain
an emergency contingency plan meeting
the specific requirements of 40 CFR
51.151 and 51.152 with respect to SOX.
Maine’s submittal cites to 06–096
CMR Chapter 109, ‘‘Emergency Episode
Regulations,’’ which specifies episode
criteria for, and emission control
measures to be implemented during, air
pollution alerts, warnings, and
emergencies to prevent ambient
pollution concentrations from reaching
significant harm levels (see 40 CFR
51.152(a)(1), (3)), and is very closely
modeled on EPA’s example regulations
for contingency plans at 40 CFR part 51,
appendix L. EPA last approved C06–096
CMR Chapter 109 into Maine’s SIP in
1995. See 60 FR 2885 (January 12,
1995). As stated in Maine’s
infrastructure SIP submittal under the
discussion of public notification
(Element J), Maine also, as a matter of
practice, posts on the internet daily air
quality forecasts to the public levels
through the EPA AirNow and EPA
EnviroFlash systems. Information
regarding these two systems is available
on EPA’s website at www.airnow.gov.
Maine’s participation in the AirNow
and EnviroFlash programs addresses
several of the public announcement and
communications procedures and
coordination with the National Weather
Service included in the discussion of
contingency plans in subpart H. See 40
CFR 51.152(a)(2), (b)(1), (b)(3).
In addition, 38 MRSA § 347–C, ‘‘Right
of inspection and entry,’’ which ME
DEP cites under Element C of its
infrastructure SIP submittal, provides
employees and agents of the ME DEP
the authority to inspect sources of air
pollution to determine compliance with
laws administered by ME DEP. Thus,
this authority allows the ME DEP to
conduct the inspection of sources to
ascertain compliance with any required
emission control actions in accordance
with 40 CFR 51.152(b)(2).
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 2010 SO2 NAAQS.
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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 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
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 ME 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, ME
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 ME 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
EPA finds that the SIP is substantially
inadequate.
Consequently, EPA proposes to find
that Maine meets the infrastructure SIP
requirements of CAA section
110(a)(2)(H) for the 2010 SO2 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
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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 in the following
sections.
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1. 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.
In a March 26, 2018, NPRM regarding
infrastructure SIPs for the 2008 Pb, 2008
ozone, and 2010 NO2 NAAQS, we
explained how Maine satisfies this
requirement. See 83 FR 12905. On June
18, 2018, we took final action approving
those multi-pollutant infrastructure SIP
submissions, including finding that
Maine’s SIP satisfies this sub-element.
See 83 FR 28157. Based on the rationale
contained in the March 26, 2018
document, EPA proposes that Maine
meets this infrastructure SIP
requirement with respect to the 2010
SO2 NAAQS.
2. 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
document, state law directs ME 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 ME DEP to
‘‘educate the public on natural resource
use, requirements and issues.’’ Id. To
that end, ME DEP makes real-time and
historical air quality information
available on its website.
Maine also provides extended-range
air-quality forecasts, which give the
public advanced notice of air quality
events. This advance NPRM allows the
public to limit their exposure to
unhealthy air and enact a plan to reduce
pollution at home and at work. The ME
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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
ME 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 meets the
infrastructure SIP requirements of this
portion of section 110(a)(2)(J) with
respect to the 2010 SO2 NAAQS.
3. 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 2010 SO2
NAAQS, consistent with the actions we
are proposing for sections 110(a)(2)(C)
and 110(a)(2)(D)(i)(II).
4. 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 Guidance, 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.
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
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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 Guidance at 55.
Maine state law implicitly authorizes
ME 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. Chapter 115 also requires that
applicants submit data related to
modeling to ME DEP. See 06–096 CMR
chapter 115, section VII.E.
Consequently, the SIP provides for such
air quality modeling as the
Administrator has prescribed and for
the submission, upon request, of data
related to such modeling.
EPA proposes to find that Maine
meets the infrastructure SIP
requirements of section 110(a)(2)(K)
with respect to the 2010 SO2 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
§ 353–A; 06–096 CMR Chapter 140)
which was approved by EPA on October
18, 2001. See 66 FR 52874. To gain this
approval, Maine demonstrated the
ability to collect sufficient fees to run
the program. See 61 FR 49289, 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) and 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 to find that Maine
meets the infrastructure SIP
requirements of section 110(a)(2)(L) for
the 2010 SO2 NAAQS.
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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 to find that Maine
meets the infrastructure SIP
requirements of section 110(a)(2)(M)
with respect to the 2010 SO2 NAAQS.
IV. Proposed Action
EPA proposes to approve Maine’s
April 19, 2017 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 2010 SO2
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 5.
TABLE 5—PROPOSED ACTION ON MAINE’S INFRASTRUCTURE SIP SUBMITTALS
Element
2010 SO2
(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 .............................................................................................................
In the above table, the key is as
follows:
A ............
CA ..........
NG .........
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NA ..........
Approve
Approve but conditionally approve
Not germane to infrastructure
SIPs
Not applicable
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 5 of this
document, EPA is proposing to
conditionally approve one portion of
Maine’s April 19, 2017 infrastructure
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SIP for the 2010 SO2 NAAQS. The
outstanding issue with this SIP revision
pertains 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
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 on (list the date if under a
statutory requirement) or 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
PO 00000
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A
A
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A
A
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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 element will also be disapproved at
that time. If EPA approves the submittal,
the infrastructure SIP element will be
fully approved in its 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).
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Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Proposed Rules
amozie on DSK3GDR082PROD with PROPOSALS1
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
VerDate Sep<11>2014
17:37 Dec 21, 2018
Jkt 247001
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Reporting and recordkeeping
requirements, Sulfur oxides.
Dated: December 17, 2018.
Alexandra Dunn,
Regional Administrator, EPA Region 1.
[FR Doc. 2018–27773 Filed 12–21–18; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2018–0103; FRL–9988–24–
Region 5]
Air Plan Approval; Ohio; Removal of
Obsolete Gasoline Volatility
Regulations
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve a
request submitted by the Ohio
Environmental Protection Agency (Ohio
EPA) on February 5, 2018, to revise the
Ohio State Implementation Plan (SIP)
under the Clean Air Act (CAA). Ohio
EPA is requesting to remove from the
SIP the remaining provisions of the
Ohio Administrative Code concerning
the State’s former 7.8 pounds per square
inch (psi) Reid vapor pressure (RVP)
fuel requirements for the Cincinnati and
Dayton areas. In a previous action, EPA
approved the removal of the 7.8 psi RVP
fuel applicability requirements in the
Cincinnati and Dayton areas as a
component of the Ohio SIP, including
the approval of a demonstration under
section 110(l) of the Clean Air Act
(CAA) that addressed emissions impacts
associated with the removal of the
program.
SUMMARY:
Comments must be received on
or before January 25, 2019.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R05–
OAR–2018–0103 at https://
www.regulations.gov, or via email to
blakley.pamela@epa.gov. For comments
DATES:
PO 00000
Frm 00034
Fmt 4702
Sfmt 4702
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
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Francisco J. Acevedo, Mobile Source
Program Manager, Control Strategies
Section, Air Programs Branch (AR–18J),
Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886–6061,
acevedo.francisco@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA. This supplementary information
section is arranged as follows:
I. What is the background for this action?
II. What is EPA proposing to approve?
III. What is EPA’s analysis of the state’s
submittal?
IV. What action is EPA proposing to take?
V. Statutory and Executive Order Reviews
I. What is the background for this
action?
On April 15, 2004, EPA designated
Hamilton, Butler, Clinton, Warren and
Clermont counties (Cincinnati area) and
Clark, Greene, Miami, and Montgomery
counties (Dayton area) as nonattainment
for the 8-hour ozone standard. As part
of Ohio’s efforts to bring these areas into
attainment of the ozone standard, the
State adopted and implemented a broad
range of ozone control measures for the
areas including the implementation of a
7.8 psi RVP fuel program that was more
stringent than the Federal 9.0 psi RVP
requirement. The Ohio EPA originally
submitted a SIP revision to EPA (on
E:\FR\FM\26DEP1.SGM
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]]>Agencies
[Federal Register Volume 83, Number 246 (Wednesday, December 26, 2018)]
[Proposed Rules]
[Pages 66184-66196]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27773]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R01-OAR-2018-0637; FRL-9987-95-Region 1]
Air Plan Approval; Maine; Infrastructure State Implementation
Plan Requirements for the 2010 Sulfur Dioxide NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve elements of the State Implementation Plan (SIP) submission from
Maine that addresses the infrastructure and interstate transport
requirements of the Clean Air Act (CAA or Act) for the 2010 sulfur
dioxide (SO2) National Ambient Air Quality Standards
(NAAQS). 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 is being taken under the Clean Air Act.
DATES: Written comments must be received on or before January 25, 2019.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2018-0637 at https://www.regulations.gov, or via email to
[[Page 66185]]
dahl.donald@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 making effective comments, please
visit https://www.epa.gov/dockets/commenting-epa-dockets. Publicly
available docket materials are available at https://www.regulations.gov
or at the U.S. Environmental Protection Agency, EPA Region 1, 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: Donald Dahl, Air Permits, Toxics, and
Indoor Programs Unit, U.S. Environmental Protection Agency, EPA Region
1, 5 Post Office Square--Suite 100, (Mail Code OEP05-2), Boston, MA
02109--3912, tel. (617) 918-1657, email dahl.donald@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. Background and Purpose
II. What guidance is EPA using to evaluate this SIP submission?
III. State Submission and EPA's Analysis
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
1. Sub-Element 1: Enforcement of SIP Measures
2. Sub-Element 2: PSD Program for Major Sources and Major
Modifications
3. Sub-Element 3: Preconstruction Permitting for Minor Sources
and Minor Modifications
D. Section 110(a)(2)(D)--Interstate Transport
1. Sub-Element 1: Section 110(A)(2)(D)(I)(I)--Contribute to
Nonattainment (Prong 1) and Interfere With Maintenance of the NAAQS
(Prong 2)
a. State's Analysis
b. EPA's Prong 1 Evaluation
c. EPA's Prong 2 Evaluation
2. Sub-Element 2: Section 110(a)(2)(D)(i)(II)--PSD (prong 3)
3. Sub-Element 3: Section 110(a)(2)(D)(i)(II)--Visibility
Protection (Prong 4)
4. Sub-Element 4: Section 110(a)(2)(D)(ii)--Interstate Pollution
Abatement
5. Sub-Element 5: Section 110(a)(2)(D)(ii)--International
Pollution Abatement
E. Section 110(a)(2)(E)--Adequate Resources
1. Sub-Element 1: Adequate Personnel, Funding, and Legal
Authority Under State Law To Carry Out Its SIP, and Related Issues
2. Sub-Element 2: State Board Requirements Under Section 128 of
the CAA
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
1. Sub-Element 1: Consultation With Government Officials
2. Sub-Element 2: Public Notification
3. Sub-Element 3: PSD
4. Sub-Element 4: 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
On April 19, 2017, the Maine Department of Environmental Protection
(ME DEP) submitted its infrastructure SIP for the 2010 SO2
NAAQS. Under sections 110(a)(1) and (2) of the CAA, states are required
to submit infrastructure SIPs to ensure that SIPs provide for
implementation, maintenance, and enforcement of the NAAQS, including
the 2010 SO2 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
[[Page 66186]]
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, guidance document entitled ``Guidance
on Infrastructure State Implementation Plan (SIP) Elements under CAA
Sections 110(a)(1) and 110(a)(2)'' (2013 guidance).\1\
---------------------------------------------------------------------------
\1\ This memorandum and other referenced guidance documents and
memoranda are included in the docket for today's action.
---------------------------------------------------------------------------
With respect to Section 110(a)(2)(D)(i), sometimes referred to as
the Good Neighbor provision, EPA notes that although SO2 is
emitted from a similar universe of point and nonpoint sources,
interstate transport of SO2 is unlike the transport of fine
particulate matter (PM2.5) or ozone in that SO2
is not a regional pollutant and does not commonly contribute to
widespread nonattainment over a large (and often multi-state) area. The
transport of SO2 is more analogous to the transport of lead
(Pb) because its physical properties result in localized pollutant
impacts very near the emissions source. However, ambient concentrations
of SO2 do not decrease as quickly with distance from the
source as Pb, because of the physical properties and typical release
heights of SO2. Emissions of SO2 travel farther
and have wider ranging impacts than emissions of Pb, but do not travel
far enough to be treated in a manner similar to ozone or
PM2.5. The approaches that EPA has adopted for ozone or
PM2.5 transport are too regionally focused and the approach
for Pb transport is too tightly circumscribed to the source.
SO2 transport is therefore a unique case and requires a
different approach. Given the physical properties of SO2,
EPA selected the ``urban scale''--a spatial scale with dimensions from
4 to 50 kilometers (km) from point sources--to evaluate these SIP
submissions for SO2 transport.\2\ As such, EPA utilized an
assessment up to 50 km from point sources when considering possible
transport of SO2 from Maine to downwind states.
---------------------------------------------------------------------------
\2\ For the definition of spatial scales for SO2,
please see 40 CFR part 58, appendix D, section 4.4 (``Sulfur Dioxide
(SO2) Design Criteria''). For further discussion on how
EPA is applying these definitions with respect to interstate
transport of SO2, see EPA's proposal on Connecticut's
SO2 transport SIP. 82 FR 21351, 21352, 21354 (May 8,
2017).
---------------------------------------------------------------------------
As discussed in Section III.D of this document, EPA first reviewed
ME DEP's analysis to assess how Maine evaluated the transport of
SO2 to other states, the types of information used in the
analysis and the conclusions drawn by the ME DEP. EPA then conducted a
weight of evidence analysis, including ME DEP's submission and other
available information, including air quality, emission sources, and
emission trends within the state and in neighboring states to which
SO2 emission sources in Maine could potentially contribute
or interfere.\3\
---------------------------------------------------------------------------
\3\ This proposed approval action is based on the information
contained in the administrative record for this action, and does not
prejudge any other future EPA action that may make other
determinations regarding any of the subject states' air quality
status. Any such future actions, such as area designations under any
NAAQS, will be based on their own administrative records and EPA's
analyses of information that has become available at those times.
Future available information may include, and is not limited to,
monitoring data and modeling analyses conducted pursuant to EPA's
SO2 Data Requirements Rule (80 FR 51052, August 21, 2015)
and information submitted to EPA by states, air agencies, and third-
party stakeholders such as citizen groups and industry
representatives.
---------------------------------------------------------------------------
III. State Submission and EPA's Analysis
EPA is soliciting comment on our evaluation of ME DEP's
infrastructure SIP submission in this notice of proposed rulemaking
(NPRM). In ME DEP'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 2010
SO2 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, e.g.,
Element A) 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.\4\ 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.
---------------------------------------------------------------------------
\4\ See, e.g., EPA's final rule on ``National Ambient Air
Quality Standards for Lead.'' 73 FR 66964, 67034 (November 12,
2008).
---------------------------------------------------------------------------
ME DEP statutory authority with respect to air quality is set out
in 38 Maine Revised Statutes Annotated (``MRSA'') Chapter 4,
``Protection and Improvement of Air.'' \5\ Statutory authority to
establish emission standards and regulations implementing ambient air
quality standards is contained in 38 MRSA Chapter 4, sections 585 and
585-A. Maine's infrastructure submittal for this element cites Maine
laws and regulations that include enforceable emissions limitations and
other control measures, means or techniques, as well as schedules and
timetables for compliance to meet the applicable requirements of the
CAA. For instance, ME DEP cites 38 MRSA Sec. 603-A, a state law that
establishes a statewide sulfur limit of 15 parts per million (ppm) for
distillate oil and 0.5% by weight for residual oil. On April 24, 2012,
EPA incorporated these statutory limits into Maine's SIP. See 77 FR
24385. In addition, ME DEP cited its SIP approved new source review
permitting regulation 06-096 CMR Chapter 115, ``Emission License
Regulations'' last amended on August 1, 2016. See 81 FR 50353.
---------------------------------------------------------------------------
\5\ ME 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.
---------------------------------------------------------------------------
EPA proposes that Maine meets the infrastructure SIP requirements
of section 110(a)(2)(A) with respect to the 2010 SO2 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
[[Page 66187]]
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, ME DEP operates an air quality monitoring network, and EPA
approved the state's most recent Annual Air Monitoring Network Plan for
SO2 on October 25, 2018.\6\ Furthermore, ME 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 ME DEP meets the infrastructure SIP
requirements of section 110(a)(2)(B) with respect to the 2010
SO2 NAAQS.
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\6\ See EPA approval letter located in the docket for this
action.
---------------------------------------------------------------------------
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.
1. Sub-Element 1: Enforcement of SIP Measures
ME DEP identifies the sources of its authority to enforce the
measures it cites to satisfy Element A as 38 MRSA Section 347-A,
``Violations,'' 38 MRSA Section 347-C, ``Right of inspection and
entry,'' 38 MRSA Section 348, ``Judicial Enforcement,'' and 38 MRSA
Section 349, ``Penalties,'' 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 SO2. EPA proposes to find that Maine
meets the enforcement requirement of section 110(a)(2)(C) with respect
to the 2010 SO2 NAAQS.
2. Sub-Element 2: PSD Program for Major Sources and Major Modifications
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.
ME DEP's EPA-approved PSD rules, contained at 06-906 CMR Chapter 100
``Definitions Regulations'' and 06-096 CMR Chapter 115 ``Major and
Minor Source Air Emission License Regulations,'' contain provisions
that address applicable requirements for all regulated NSR pollutants.
In our proposal on March 26, 2018 regarding the submittal of
infrastructure SIPS for the 2008 Pb, 2008 ozone, and 2010
NO2 NAAQS by the ME DEP, we explained how Maine's SIP meets
this sub-element for PSD. See 83 FR 12905. On June 18, 2018, we took
final action approving those multi-pollutant infrastructure SIP
submissions, including finding that Maine's SIP satisfies this sub-
element. See 83 FR 28157. Maine's PSD SIP has not changed since our
June 18, 2018 approval, and no new PSD requirements have arisen;
therefore, based on our rationale contained in the March 26, 2018
document, EPA proposes to find that Maine has met the PSD requirement
of section 110(a)(2)(C) with respect to the 2010 SO2 NAAQS.
For the purposes of today's rulemaking on Maine's infrastructure SIP,
EPA reiterates that NSR Reform is not in the scope of this action.
3. 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 (minor NSR), 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. Maine's minor
NSR program is contained within 06-096 CMR Chapter 115, ``Major and
Minor Source Air Emission License Regulations.'' EPA last approved
revisions to Chapter 115 on August 1, 2016 (81 FR 50353). ME DEP and
EPA rely on 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 2010 SO2 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 2010 SO2 NAAQS.
D. Section 110(a)(2)(D)--Interstate Transport
Section 110(a)(2)(D) of the CAA 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 in the following
sections, 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.
1. Sub-Element 1: Section 110(a)(2)(D)(i)(I)--Contribute to
Nonattainment (Prong 1) and Interfere With Maintenance of the NAAQS
(Prong 2)
In this section, we provide an overview of Maine's 2010
SO2 transport analysis, as well as EPA's evaluation of
prongs 1 and 2. Table 1 shows emission trends for Maine and its
neighboring state New Hampshire.\7\ The table will be referenced as
part of EPA's analysis.\8\
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\7\ EPA also analyzed potential impacts from Maine sources on
Massachusetts, which is on the other side of NH and is approximately
24 km from Maine. There are no sources in Massachusetts within 50 km
of Maine that emitted over 100 tons per year of SO2. The
closest source in Maine that is over 100 tons per year of
SO2 is approximately 95 km away from Massachusetts. Maine
sources are not expected to contribute to a nonattainment area
within Massachusetts, and we do not foresee any interference with
maintenance of the 2010 SO2 NAAQS.
\8\ This emissions trends information was derived from EPA's web
page https://www.epa.gov/air-emissions-inventories/air-pollutant-emissions-trends-data, accessed on November 1, 2018.
[[Page 66188]]
Table 1--Statewide SO2 Data for Maine and New Hampshire
[Tons per year]
----------------------------------------------------------------------------------------------------------------
SO2 reduction,
State 2000 2005 2010 2017 2000-2017 (%)
----------------------------------------------------------------------------------------------------------------
Maine........................... 57,906 32,397 17,020 10,447 82.0
New Hampshire................... 68,768 63,634 35,716 6,401 90.7
----------------------------------------------------------------------------------------------------------------
a. State's Analysis
In Maine's April 19, 2017 infrastructure SIP submission addressing
the 2010 SO2 NAAQS, the state explicitly refers to the
interstate transport provision of CAA Section 110(a)(2)(D)(i). In its
April 19, 2017 SIP submittal, the ME DEP stated that sources within
Maine do not significantly contribute to any monitored SO2
violations in another state. Maine based its assertion on EPA's air
quality designations for the 2010 SO2 NAAQS and included a
reference to EPA's Round 1 designations. See ``https://www.gpo.gov/fdsys/pkg/FR-2013-08-05/pdf/2013-18835.pdf'' 78 FR 47191, August 5,
2013. Maine also referenced its PSD permit program, which assists the
State in controlling future emissions from new or modified major
sources.
The SIP submission addresses prong 1 of Section 110(a)(2)(D)(i) by
stating that ``Maine sources do not significantly contribute to any
monitored sulfur dioxide violations in other states. . . .'' However,
the SIP submission does not appear to specifically address whether
Maine interferes with maintenance of the NAAQS in a nearby state (prong
2). On October 29, 2018, Maine submitted a letter to EPA clarifying the
State intended to demonstrate in its April 19, 2017 SIP submittal that
it does not interfere with maintenance of the NAAQS in other states
(prong 2). Therefore, EPA concludes that Maine's submission was
intended to address both prongs of the interstate transport provision
given that the submission refers to the entirety of CAA section
110(a)(2)(D)(i)(I).
b. EPA's Prong 1 Evaluation
EPA proposes to find that Maine's SIP submittal meets the
interstate transport requirements of CAA section 110(a)(2)(D)(i)(I),
prong 1 for the 2010 SO2 NAAQS, as discussed below. As
described below, we have analyzed the air quality, emission sources and
emission trends in Maine and New Hampshire. Based on that analysis, we
propose to find that Maine will not significantly contribute to
nonattainment of the 2010 SO2 NAAQS in any other state.
We reviewed 2015-2017 SO2 concentrations design values
at monitors with data sufficient to produce valid 1-hour SO2
design values for Maine and neighboring states.\9\ In Table 2 below, we
have included monitoring data satisfying any of the following selection
criteria: (1) All of the monitor data from Maine; (2) the monitor with
the highest SO2 level in New Hampshire; (3) the monitor in
New Hampshire closest to the Maine border; and (4) all monitors in New
Hampshire within approximately 50 km of the border. EPA reviewed these
ambient air quality data in Maine and New Hampshire to see whether
there were any monitoring sites, particularly near the Maine border,
with elevated SO2 concentrations that might warrant further
investigation with respect to interstate transport of SO2
from emission sources near any given monitor. As shown, there are no
violating design values in Maine or New Hampshire.
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\9\ Data retrieved from https://www.epa.gov/air-trends/air-quality-design-values#report, accessed on November 1, 2018.
Table 2--SO2 Monitor Values for Maine and New Hampshire
--------------------------------------------------------------------------------------------------------------------------------------------------------
Approximate
distance to 2013-2015 2014-2016 2015-2017
State/area Scenario Site ID Maine/New Design value Design value Design value
Hampshire (ppb) (ppb) (ppb)
border (km)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Maine/Portland.......................................... 1 230050029 57 12 11 9
Maine/Hancock County.................................... 1 230090103 219 2 1 1
Maine/Eliot \a\......................................... 1 230310009 .............. \b\ NA \b\ NA \b\ NA
New Hampshire/Merrimack County.......................... 4 330131006 46 20 20 15
New Hampshire/Rockingham County-Pierce Island........... 2, 3 330150014 <1 29 22 16
--------------------------------------------------------------------------------------------------------------------------------------------------------
a. The Sawgrass Lane monitor collected SO2 concentration data from October 24, 2014 to April 1, 2016. The maximum 1-hour SO2 concentration observed from
this monitor was 37.7 parts per billion (ppb) on January 8, 2015, when winds came from the direction of Schiller Station in New Hampshire.
b. The DV for this site is invalid due to incomplete data for this period and is not for use in comparison to the NAAQS.
The data presented in Table 2 show that Maine's network of
SO2 monitors with data sufficient to produce valid 1-hour
SO2 design values indicates that monitored 1-hour
SO2 levels in Maine are between 1% and 12% of the 75 parts
per billion (ppb) level of the NAAQS. As shown, there are no Maine
monitors located within 50 km of a neighboring state's border. The
nearest monitor is approximately 57 km from New Hampshire. Two monitors
in New Hampshire are located within 50 km of the Maine border, and
these monitors recorded SO2 design values ranging between
20% and 21% of the 2010 SO2 NAAQS. Thus, these air quality
data do not, by themselves, indicate any
[[Page 66189]]
particular location that would warrant further investigation with
respect to SO2 emission sources in Maine that might
significantly contribute to nonattainment in the neighboring states.
However, because the monitoring network is not necessarily designed to
find all locations of high SO2 concentrations, this
observation indicates an absence of evidence of impact at these
locations but is not sufficient evidence by itself of an absence of
impact at all locations in the neighboring states. We have therefore
also conducted a source-oriented analysis. As noted, EPA finds that it
is appropriate to examine the impacts of emissions from stationary
sources in Maine in distances ranging from 0 km to 50 km from the
facility, based on the ``urban scale'' definition contained in appendix
D to 40 CFR part 58, Section 4.4. The list of Maine sources of 100 tons
per year (tpy) or greater of SO2 within 50 km from state
borders is shown in Table 3 below.
Table 3--Maine SO2 Sources Near Neighboring States
----------------------------------------------------------------------------------------------------------------
Nearest
2016 SO2 distance to Distance to nearest Nearest neighboring
Maine source emissions Maine/New neighboring state state major source
(tons) \a\ Hampshire major SO2 source \b\ SO2 emissions \c\
border (km) (tons)
----------------------------------------------------------------------------------------------------------------
Catalyst Paper Operations, Inc. in 846 38 168 (Dartmouth 246 (Dartmouth
Rumford. College in Hanover, College).
NH).
S.D. Warren Company in Westbrook.. 198 50 74 (Newington Station 304 total (Newington
and Schiller Station Station (41) and
in Newington and Schiller Station
Portsmouth, NH, (263)).
respectively).
----------------------------------------------------------------------------------------------------------------
a. See https://www.maine.gov/dep/ftp/AIR/DATA/CAP_SUMMARIES/, accessed on November 1, 2018.
b. A source emitting 100 tons per year (tpy) or greater of SO2 emissions.
c. Emission data from Dartmouth College are for the year 2014. Emission data for Schiller and Newington Station
are for the year 2017.
Table 3 identifies the nearest out-of-state source emitting above
100 tpy of SO2, because elevated levels of SO2,
to which SO2 emitted in Maine may have a downwind impact,
are most likely to be found near such sources. The distances to these
sources are listed because the impact of the sources in Maine decreases
with distance. In the case of Catalyst Paper, the distance between this
source and the Maine/New Hampshire state border is 38 km and the
nearest major SO2 source in neighboring state New Hampshire
is 168 km. With regards to S.D. Warren, the distance between this
source and the Maine/New Hampshire state border is 50 km and the
nearest major SO2 sources in neighboring state New Hampshire
is 74 km. This information indicates that emissions from Maine are very
unlikely to contribute significantly to problems with attainment of the
2010 SO2 NAAQS in New Hampshire.
EPA also reviewed the location of sources in New Hampshire emitting
more than 100 tpy of SO2 and located within 50 km of the
Maine border and found that the only sources that meet these criteria
are Schiller and Newington Stations. The interaction between these
sources and sources in Maine has been addressed in the discussion of
Table 3.
In addition to analyzing the distances between sources emitting 100
tons per year of SO2, EPA acknowledges that New Hampshire,
as required by the 40 CFR part 51, subpart BB (SO2 Data
Requirements Rule), provided air quality modeling information. The New
Hampshire modeling indicated that emissions allowed under new,
federally-enforceable emissions limits included in state air permits
for Newington and Schiller Stations and emissions from some other
sources that were explicitly represented in the modeling, combined with
a representative background concentration that reflects the impact of
sources that were not explicitly represented in the modeling, would not
result in a violation of the NAAQS in the portions of New Hampshire,
Maine, and Massachusetts that were included in the modeling domain.\10\
Given that there are no NAAQS violations within the modeling domain, we
conclude that sources in Maine are not significantly contributing to
NAAQS violations in the New Hampshire or Massachusetts portion of the
domain. In addition, the modeling provided no suggestion that
violations are occurring beyond the edge of the modeling domain.
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\10\ A detailed description of EPA's assessment of the modeling,
and associated visualizations, are available in Chapter 27 of the
Technical Support Document for EPA's Intended Round 3 Area
Designations for the 2010 1-Hour SO2 Primary National
Ambient Air Quality Standard for New Hampshire, included in this
docket, number EPA-R01-OAR-2018-0637. See 82 FR 41903 (September 5,
2017). In referencing EPA's Intended Round 3 Area Designations, EPA
is not reopening the SO2 area designations action. A
notice of the final rule for these designations was published on
January 9, 2018. See 83 FR 1098.
---------------------------------------------------------------------------
EPA also analyzed whether any sources within Maine are
significantly contributing to violations in the Central New Hampshire
nonattainment area. The Central New Hampshire nonattainment area is
approximately 20 km from the Maine state border. The nearest Maine
source with SO2 emissions greater than 100 tpy is in
Westbrook Maine, approximately 82 km away. In its attainment plan for
the Central New Hampshire nonattainment area, New Hampshire included
air dispersion modeling to establish federally enforceable
SO2 emission limits for Merrimack Station in Bow, New
Hampshire, the main contributor to the nonattainment area. New
Hampshire demonstrated that with these emission limits in place there
will be no NAAQS violations within the nonattainment area. See 82 FR
45242 (September 28, 2017).\11\ As already noted, recent monitoring
data from 2013-2017 indicates no NAAQS violations within the
nonattainment area. Thus, we propose to conclude that sources in Maine
are not significantly contributing to NAAQS violations in the
nonattainment area.
---------------------------------------------------------------------------
\11\ In referencing EPA's approval of New Hampshire's plan and
attainment demonstration for the Central New Hampshire Nonattainment
Area, EPA is not reopening the nonattainment area plan approval
action. A notice of the final rule for the plan approval was
published on June 5, 2018. See 83 FR 25922.
---------------------------------------------------------------------------
Given the localized range of potential 1-hour SO2
impacts and the analysis of sources emitting at least 100 tpy of
SO2, along with modeling analysis provided to EPA for other
CAA purposes, EPA proposes to conclude that SO2 emissions
from Maine will not will not contribute significantly to nonattainment
of the SO2 NAAQS in New Hampshire and Massachusetts.
c. EPA's Prong 2 Evaluation
Prong 2 of the good neighbor provision requires state plans to
[[Page 66190]]
prohibit emissions that will interfere with maintenance of a NAAQS in
another state. Given the trend of decreased emissions from sources
within Maine to date, as shown in Table 1, and our conclusion that
there are no current violations of the SO2 NAAQS in the
portions of the neighboring states that are near Maine, EPA believes
that a reasonable analysis of whether sources or other emissions
activity originating within Maine interfere with its neighboring
states' ability to maintain the NAAQS consists of evaluating whether
these decreases in emissions can be maintained over time.
As shown in Table 4, the combined SO2 emissions from the
two largest categories, Fuel Combustion: Other category (home heating
oil) and Fuel Combustion: Industrial, was 79% of total SO2
state-wide emissions.
Table 4--Summary of 2014 National Emissions Inventory (NEI) SO2 Data for
Maine
------------------------------------------------------------------------
Emissions
Category (tons per
year)
------------------------------------------------------------------------
Fuel Combustion: Electric Utilities..................... 928
Fuel Combustion: Industrial............................. 4,042
Fuel Combustion: Other.................................. 4,842
Waste Disposal and Recycling............................ 627
Other Industrial Process................................ 433
Highway Vehicles........................................ 152
Off-Highway............................................. 197
Miscellaneous........................................... 40
Petroleum & Related Industries.......................... 19
---------------
Total............................................... 11,280
------------------------------------------------------------------------
When compared to the year 2014, the SO2 emissions from
both households and industrial sources are expected to be significantly
reduced \12\ due to 38 MRSA Chapter 603-A, which established, effective
as of January 1, 2018, statewide sulfur limits of 15 parts per million
(ppm) for distillate oil and 0.5% by weight for residual oil. As stated
earlier, EPA incorporated this statute into Maine's SIP on April 24,
2012. See 77 FR 24385.
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\12\ The State statute required that most industrial sources
that combust fuel oil to lower the sulfur content from 2% to 0.5%, a
75% reduction. The statute requires distillate oil, mainly used in
homes, to be reduced from home heating oil went from 5,000 ppm to 15
ppm by weight, a 99% reduction.
---------------------------------------------------------------------------
As shown in Table 1, statewide SO2 emissions in Maine
have decreased over time. A number of factors are involved that caused
this decrease in emissions, including the State's adoption of 38 MRSA
Chapter 603-A and the change in capacity factors at EGUs in Maine over
time due to increased usage of natural gas to generate electricity in
the region. Actual SO2 emissions from the facilities
currently operating in Maine have decreased between 2000 and 2017, and
EPA concludes based on this trend that emissions originating in Maine
are not expected to interfere with the neighboring states' ability to
maintain the 2010 SO2 NAAQS.
Lastly, any new or modified major sources of SO2
emissions will be addressed by Maine's SIP-approved Prevention of
Significant Deterioration (PSD) program, last amended on August 1,
2016. See 81 FR 50353. Future minor sources of SO2 emissions
will be addressed by the State's minor new source review permit
program, last amended on March 23, 1993. See 58 FR 15430. The
permitting regulations contained within these programs, along with the
other factors already discussed, are expected to help ensure that
ambient concentrations of SO2 in neighboring states will not
exceed the NAAQS as a result of new facility construction or
modification occurring in Maine.
It is also worth noting air quality trends for concentrations of
SO2 in the Northeastern United States.\13\ This region has
experienced an 84% decrease in the annual 99th percentile of daily
maximum 1-hour averages between 2000 and 2017 based on 40 monitoring
sites, and the most recently available data for 2017 indicates that the
mean value at these sites was 12.9 ppb, which is less than 18% of the
NAAQS. When this trend is evaluated alongside the monitored
SO2 concentrations within Maine as well as the
SO2 concentrations recorded at monitors in New Hampshire,
EPA does not believe that sources or emissions activity from within
Maine are significantly different than the overall decreasing monitored
SO2 concentration trend in the Northeast region. As a
result, EPA finds it unlikely that sources or emissions activity from
within Maine will interfere with other states' ability to maintain the
2010 primary SO2 NAAQS.
---------------------------------------------------------------------------
\13\ See https://www.epa.gov/air-trends/sulfur-dioxide-trends,
accessed on November 1, 2018.
---------------------------------------------------------------------------
Based on each of factors contained in the prong 2 maintenance
analysis above, EPA proposes to find that sources or other emissions
activity within Maine will not interfere with maintenance of the 2010
primary SO2 NAAQS in any other state.
2. 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 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, ME 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 emissions do not contribute significantly to
nonattainment, or interfere with maintenance, of any NAAQS. 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 propose to approve Maine's infrastructure SIP
submission for the 2010 SO2 NAAQS related to section
110(a)(2)(D)(i)(II) Prong 3 for the reasons cited under Element C.
3. Sub-Element 3: Section 110(a)(2)(D)(i)(II)--Visibility Protection
(Prong 4)
Prong 4 requires a state's SIP to have adequate provisions
prohibiting emissions in amounts that will interfere with measures in
other states' SIPs to protect visibility. The prong 4 requirement is
closely connected to the regional haze program under part C of the CAA,
in which states work together in a regional planning process to
determine each state's contribution to the visibility impairment in
that region and agree to emission reduction measures to improve
visibility. Maine is a member of the Mid-Atlantic/North East Visibility
Union. EPA regulations require that a state participating in a regional
planning process include in its regional haze SIP all measures needed
to achieve its apportionment of emission reduction obligations agreed
upon through that process. See, e.g., 40 CFR 51.308(d)(3). Thus, a
fully approved regional haze SIP meeting the requirements of 40 CFR
51.308 will ensure that emissions from sources under an air agency's
jurisdiction are not interfering with measures required to be included
in other air agencies'
[[Page 66191]]
plans to protect visibility and will, therefore, satisfy Prong 4. EPA
approved Maine's Regional Haze SIP on April 24, 2012 (77 FR 24385).
Accordingly, EPA proposes that Maine meets the visibility protection
requirements of 110(a)(2)(D)(i)(II) for the 2010 SO2 NAAQS.
4. 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 ME 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). 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 2010 SO2 NAAQS. Consequently, EPA
proposes to approve Maine's infrastructure SIP submittals for this sub-
element with respect to the 2010 SO2 NAAQS.
5. 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 section 115 relating
to international pollution abatement. There are no final findings under
section 115 against Maine with respect to the 2010 SO2
NAAQS. Therefore, EPA proposes to find that Maine meets the applicable
infrastructure SIP requirements of section 110(a)(2)(D)(ii) related to
section 115 for the 2010 SO2 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.
1. 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. 341-H, ``Departmental
rulemaking,'' 38 MRSA Sec. 342, ``Commissioner, duties,'' and 38 MRSA
Sec. 581, ``Declaration of findings and intent.'' These statutes
provide the ME DEP with the legal authority to enforce air pollution
control requirements and carry out SIP obligations with respect to the
2010 SO2 NAAQS. Additionally, state law provides ME 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. The ME DEP states that these funding sources provide it
with adequate resources to carry out the SIP. Therefore, EPA proposes
to find that Maine meets the infrastructure SIP requirements of this
portion of section 110(a)(2)(E) with respect to the 2010 SO2
NAAQS.
2. Sub-Element 2: State Board Requirements Under Section 128 of the CAA
Section 110(a)(2)(E) also requires each SIP to contain provisions
that 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 ME DEP consists of a Commissioner and a
Board of Environmental Protection (``BEP'' or ``Board''), which is an
independent authority under state law that reviews certain permit
applications in the first instance and also renders final decisions on
appeals of permitting actions taken by the Commissioner as well as some
enforcement decisions by the Commissioner. Because the Board has
authority under state law to hear appeals of some CAA permits and
enforcement orders, EPA considers that the Board has authority to
``approve'' those permits or enforcement orders, as recommended in the
2013 Guidance. For this reason, and because the Board also issues some
permits directly, the requirement of CAA section 128(a)(1) applies to
Maine--that is, that ``any board or body which approves permits or
enforcement orders 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
[[Page 66192]]
income from persons subject to'' air permits and enforcement orders.
Furthermore, section 341-C is not currently in Maine's SIP. In a letter
dated March 1, 2018 (extended to pertain to the 2012 SO2
NAAQS in a letter dated October 29, 2018), the ME DEP committed to
revise section 341-C to address the CAA section 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 section 128(a)(1) for the 2010 SO2 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 section
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 section 128(a)(2) requirement for Maine with respect to Board
members, and EPA approved both statutes into the Maine SIP. See 83 FR
28157 (June 18, 2018). For more information, see 83 FR 12905, 12912
(March 26, 2018). EPA proposes to find that Maine's SIP also satisfies
CAA section 128(a)(2) with respect to Board members for the 2010
SO2 NAAQS for the same reasons.
Regarding the DEP Commissioner, state law at 38 MRSA Sec. 341-
A(3)(D) also explicitly makes that official subject to 5 MRSA Sec. 18,
the same conflict-of-interest statute to which the Board is subject. In
the above-referenced multi pollutant infrastructure SIP action, EPA
determined that 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, together satisfy
the conflict of interest requirement with respect to the DEP
Commissioner. See 83 FR 28157 (June 18, 2018); 83 FR 12905, 12912
(March 26, 2018). While 38 MRSA Sec. 341-A(3)(D) is not currently in
the SIP, ME 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 (June 18, 2018). Consequently,
EPA proposes to conditionally approve Maine's infrastructure SIP
submissions for the conflict of interest requirement of CAA section
128(a)(2) with respect to the DEP Commissioner for the 2010
SO2 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.
Maine's infrastructure submittal references existing state
regulations previously approved by EPA that require sources to monitor
emissions and submit reports. First, Maine references 06-096 CMR
Chapter 115, ``Major and Minor Source Air Emission License
Regulations.'' This regulation contains compliance assurance
requirements regarding emissions monitoring and reporting for licensed
sources.
Maine also references 06-096 CMR Chapter 117, ``Source
Surveillance,'' which specifies air emission sources required to
install, calibrate, maintain, and operate continuous emission
monitoring systems (CEMS) and to submit periodic reports to EPA.
Chapter 137 was approved into the SIP by EPA on March 21, 1989 (54 FR
11524).
In addition, Maine's emission statement rule, at 06-096 CMR Chapter
137, requires certain facilities to report emissions of air pollutants
on an annual basis. EPA most recently approved revisions to Chapter 137
into the SIP on November 21, 2007. See 73 FR 65462. We further note
that 38 MRSA Sec. 347-C, ``Right of inspection and entry,''
(referenced in ME DEP's submission with respect to enforcement under
element C) authorizes ME DEP to inspect facilities, take samples,
inspect records, and conduct tests as appropriate to determine
compliance with permits, orders, regulations, and laws. Finally, by
letter dated March 1, 2018 (extended to pertain to the 2010
SO2 NAAQS in a letter dated October 29, 2018), ME 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.
Regarding the section 110(a)(2)(F)(iii) requirements that the SIP
provide for the correlation and public availability of emission
reports, the ME 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.\14\ 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.
---------------------------------------------------------------------------
\14\ See www.epa.gov/air-emissions-inventories/national-emissions-inventory-nei.
---------------------------------------------------------------------------
Pursuant to ME 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). We also note that the
Maine Freedom of Access Law does not expressly make emissions
statements confidential, 1 MRSA Sec. 402, and that, pursuant to ME
DEP's EPA-approved regulations, ``[i]nformation concerning the nature
and extent of the
[[Page 66193]]
emissions of any air contaminant by a source''--which includes emission
reports--``shall not be confidential.'' See 06-096 CMR Chapter 115,
Sec. IX(B)(1). By letter dated March 1, 2018, extended to pertain to
the 2010 SO2 NAAQS in a letter dated October 29, 2018, Maine
further certified that Maine's Freedom of Access law does not include
any exceptions that apply to stationary source emissions.
For the above reasons, EPA proposes to approve Maine's submittals
for the requirements of section 110(a)(2)(F) for the 2010
SO2 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 ME DEP's April 19, 2017 submittal and a March
1, 2018 letter (extended to apply to the 2010 SO2 NAAQS in a
letter dated October 29, 2018) provides for authority comparable to
that in CAA section 303. The statutes and regulations are: 38 MRSA
Sec. 347-A, ``Emergency Orders,'' 38 MRSA Sec. 348, ``Judicial
Enforcement,'' 37-B MRSA Sec. 742, ``Emergency Proclamation,'' 38 MRSA
Sec. 591, ``Prohibitions,'' and 06-096 CMR Chapter 109, ``Emergency
Episode Regulations.'' In our proposal to approve this requirement for
Maine's 2012 PM2.5 infrastructure SIP submission, we
explained how this combination of authorities provides ME DEP with
authority comparable to that in CAA section 303. See 83 FR 39957,
39966-39967 (August 13, 2018). These statutes and the regulation apply
in the same manner to SO2 emissions as they do to
particulate matter emissions. Accordingly, for the reasons contained in
our proposal to approve this element for the 2012 PM2.5
infrastructure SIP, we propose to find that this combination of state
statutes and regulations provide for authority comparable to that in
CAA section 303 for the 2010 SO2 infrastructure SIP.
Section 110(a)(2)(G) also requires that, for any NAAQS, states have
an approved contingency plan for any Air Quality Control Region (AQCR)
within the state that is classified as Priority I, IA, or II. See 40
CFR 51.152(c). As relevant to this proposed rulemaking action, three of
the five AQCRs in Maine are classified as IA or II for sulfur oxides
(SOX). See 40 CFR 52.1021. Consequently, Maine's SIP must
contain an emergency contingency plan meeting the specific requirements
of 40 CFR 51.151 and 51.152 with respect to SOX.
Maine's submittal cites to 06-096 CMR Chapter 109, ``Emergency
Episode Regulations,'' which specifies episode criteria for, and
emission control measures to be implemented during, air pollution
alerts, warnings, and emergencies to prevent ambient pollution
concentrations from reaching significant harm levels (see 40 CFR
51.152(a)(1), (3)), and is very closely modeled on EPA's example
regulations for contingency plans at 40 CFR part 51, appendix L. EPA
last approved C06-096 CMR Chapter 109 into Maine's SIP in 1995. See 60
FR 2885 (January 12, 1995). As stated in Maine's infrastructure SIP
submittal under the discussion of public notification (Element J),
Maine also, as a matter of practice, posts on the internet daily air
quality forecasts to the public levels through the EPA AirNow and EPA
EnviroFlash systems. Information regarding these two systems is
available on EPA's website at www.airnow.gov. Maine's participation in
the AirNow and EnviroFlash programs addresses several of the public
announcement and communications procedures and coordination with the
National Weather Service included in the discussion of contingency
plans in subpart H. See 40 CFR 51.152(a)(2), (b)(1), (b)(3).
In addition, 38 MRSA Sec. 347-C, ``Right of inspection and
entry,'' which ME DEP cites under Element C of its infrastructure SIP
submittal, provides employees and agents of the ME DEP the authority to
inspect sources of air pollution to determine compliance with laws
administered by ME DEP. Thus, this authority allows the ME DEP to
conduct the inspection of sources to ascertain compliance with any
required emission control actions in accordance with 40 CFR
51.152(b)(2).
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 2010 SO2 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 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 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 ME 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, ME 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 ME 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 EPA finds that the SIP is substantially
inadequate.
Consequently, EPA proposes to find that Maine meets the
infrastructure SIP requirements of CAA section 110(a)(2)(H) for the
2010 SO2 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
[[Page 66194]]
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 in the following
sections.
1. 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.
In a March 26, 2018, NPRM regarding infrastructure SIPs for the
2008 Pb, 2008 ozone, and 2010 NO2 NAAQS, we explained how
Maine satisfies this requirement. See 83 FR 12905. On June 18, 2018, we
took final action approving those multi-pollutant infrastructure SIP
submissions, including finding that Maine's SIP satisfies this sub-
element. See 83 FR 28157. Based on the rationale contained in the March
26, 2018 document, EPA proposes that Maine meets this infrastructure
SIP requirement with respect to the 2010 SO2 NAAQS.
2. 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 document, state law directs ME 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 ME DEP to ``educate the public on natural
resource use, requirements and issues.'' Id. To that end, ME DEP makes
real-time and historical air quality information available on its
website.
Maine also provides extended-range air-quality forecasts, which
give the public advanced notice of air quality events. This advance
NPRM allows the public to limit their exposure to unhealthy air and
enact a plan to reduce pollution at home and at work. The ME 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 ME 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 meets the infrastructure SIP requirements
of this portion of section 110(a)(2)(J) with respect to the 2010
SO2 NAAQS.
3. 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
2010 SO2 NAAQS, consistent with the actions we are proposing
for sections 110(a)(2)(C) and 110(a)(2)(D)(i)(II).
4. 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 Guidance, 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.
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 Guidance at 55.
Maine state law implicitly authorizes ME 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. Chapter 115 also requires that
applicants submit data related to modeling to ME DEP. See 06-096 CMR
chapter 115, section VII.E. Consequently, the SIP provides for such air
quality modeling as the Administrator has prescribed and for the
submission, upon request, of data related to such modeling.
EPA proposes to find that Maine meets the infrastructure SIP
requirements of section 110(a)(2)(K) with respect to the 2010
SO2 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. See 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) and 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 to find that Maine meets the infrastructure SIP
requirements of section 110(a)(2)(L) for the 2010 SO2 NAAQS.
[[Page 66195]]
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 to find that Maine meets the infrastructure SIP
requirements of section 110(a)(2)(M) with respect to the 2010
SO2 NAAQS.
IV. Proposed Action
EPA proposes to approve Maine's April 19, 2017 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 2010 SO2 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 5.
Table 5--Proposed Action on Maine's Infrastructure SIP Submittals
------------------------------------------------------------------------
Element 2010 SO2
------------------------------------------------------------------------
(A): Emission limits and other control A
measures.
(B): Ambient air quality monitoring and A
data system.
(C)1: Enforcement of SIP measures........ A
(C)2: PSD program for major sources and A
major modifications.
(C)3: PSD program for minor sources and A
minor modifications.
(D)1: Contribute to nonattainment/ A
interfere 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 NA
to 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 A
officials.
(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................................ Approve but conditionally approve
NG................................ Not germane to infrastructure SIPs
NA................................ Not applicable
------------------------------------------------------------------------
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 5 of this
document, EPA is proposing to conditionally approve one portion of
Maine's April 19, 2017 infrastructure SIP for the 2010 SO2
NAAQS. The outstanding issue with this SIP revision pertains 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 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 on (list the date if under a statutory
requirement) or 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 element will also be disapproved at that
time. If EPA approves the submittal, the infrastructure SIP element
will be fully approved in its 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).
[[Page 66196]]
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, Incorporation by
reference, Intergovernmental relations, Reporting and recordkeeping
requirements, Sulfur oxides.
Dated: December 17, 2018.
Alexandra Dunn,
Regional Administrator, EPA Region 1.
[FR Doc. 2018-27773 Filed 12-21-18; 8:45 am]
BILLING CODE 6560-50-P
