[Federal Register Volume 62, Number 184 (Tuesday, September 23, 1997)]
[Rules and Regulations]
[Pages 49608-49611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25230]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[ME-046-6996a; A-1-FRL-5894-8]
Approval and Promulgation of Air Quality Implementation Plans;
Maine (General Conformity Rule)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving the State Implementation Plan (SIP) revision
submitted by the State of Maine for the purpose of implementing General
Conformity (Section 176(c)(4)(C) of the Clean Air Act (CAA), and its
regulations, 40 CFR part 51, subpart W), which requires federal actions
to conform to all applicable implementation plans developed pursuant to
section 110 and part D of the CAA. The Maine SIP incorporates by
reference the criteria and procedures set forth at 40 CFR part 51,
subpart W. This general conformity SIP revision will enable the State
of Maine to implement and enforce the Federal general conformity
requirements in Maine's nonattainment and maintenance areas at the
State and local level. This action is being taken in accordance with
the Clean Air Act.
DATES: This action is effective November 24, 1997, unless EPA receives
adverse or critical comments by October 23, 1997. If the effective date
is delayed, timely notice will be published in the Federal Register.
ADDRESSES: Comments may be mailed to Susan Studlien, Deputy Director,
Office
[[Page 49609]]
of Ecosystem Protection (mail code CAA), U.S. Environmental Protection
Agency, Region I, JFK Federal Building, Boston, MA 02203. Copies of the
documents relevant to this action are available for public inspection
during normal business hours, by appointment at the Office of Ecosystem
Protection, U.S. Environmental Protection Agency, Region I, One
Congress Street, 11th floor, Boston, MA; Air and Radiation Docket and
Information Center, U.S. Environmental Protection Agency, 401 M Street,
SW. (LE-131), Washington, DC 20460; and the Bureau of Air Quality
Control, Department of Environmental Protection, 71 Hospital Street,
Augusta, ME 04333.
FOR FURTHER INFORMATION CONTACT: Donald O. Cooke, (617) 565-3508, at
the EPA Region I address above.
SUPPLEMENTARY INFORMATION: Section 176(c) of the Clean Air Act, as
amended (the Act), requires the EPA to promulgate criteria and
procedures for demonstrating and ensuring conformity of Federal actions
to an applicable implementation plan developed pursuant to section 110
and part D of the Act. EPA promulgated a final rulemaking on November
30, 1993 consisting of 40 CFR part 93, subpart B, ``Determining
Conformity of General Federal Actions to State or Federal
Implementation Plans,'' which applied to Federal agencies immediately
(hereafter referred to as the General Conformity rule); and 40 CFR part
51, subpart W, ``Determining Conformity of General Federal Actions to
State or Federal Implementation Plans,'' which established requirements
for States in submitting SIPs. The general conformity rules, except for
the 40 CFR 51.851(a) language requiring State submission of a SIP
revision, are repeated at 40 CFR part 93, subpart B. The General
Conformity rule establishes the criteria and procedures governing the
determination of conformity for all Federal actions, except Federal
highway and transit actions.
The General Conformity rule also establishes the criteria for EPA
approval of SIPs. See 40 CFR 51.851 and 93.151. These criteria provide
that the state provisions must be at least as stringent as the
requirements specified in EPA's General Conformity rule, and that they
can be more stringent only if they apply equally to Federal and non-
Federal entities (Sec. 51.851(b)). The federal General Conformity rule
has been incorporated by reference so Maine's rule is no more stringent
than the federal rule and does not impose any additional controls on
non-federal entities.
On October 11, 1996, the State of Maine submitted a formal revision
to its State Implementation Plan (SIP). The SIP revision consists of
incorporating by reference 40 CFR 51.850, 51.852, 51.853, 51.854,
51.855, 51.856, 51.857, 51.858, 51.859 and 51.860 thereby establishing
general conformity criteria and procedures in the Maine SIP. This
proposed SIP revision was the subject of a public hearing held on
August 14, 1996 in accordance with federal and state administrative
requirements. The Maine Board of Environmental Protection adopted
``State Chapter 141--Conformity of General Federal Actions,'' that
became effective September 28, 1996. The Maine Office of the Attorney
General has certified Chapter 141 as to form and legality.
I. Summary of SIP Revision
The purpose of the General Conformity Rule is to ensure that all
Federal actions [except for Federal actions related to transportation
projects funded or approved under Title 23 U.S.C. or the Federal
Transit Act (49 U.S.C. 1601 et seq.) which are regulated under
Transportation Conformity], conform to the appropriate SIP developed
pursuant to Section 110 and part D of the CAA. Section 176(c) of the
CAA, 42 U.S.C. 7506(c), provides that no Federal department, agency, or
instrumentality shall engage in, support in any way or provide
financial assistance for, license or permit, or approve any activity
which does not conform to a SIP that has been approved or promulgated
pursuant to the CAA. Conformity is defined in section 176(c) of the CAA
as conformity to the SIP's purpose of eliminating or reducing the
severity and number of violations of the National Ambient Air Quality
Standards (NAAQS) and achieving expeditious attainment of such
standards, and that such activities will not: (1) Cause or contribute
to any new violation of any standard in any area; (2) interfere with
provisions in the applicable SIP for maintenance of any standard; (3)
increase the frequency or severity of any existing violation of any
standard in any area; or (4) delay timely attainment of any standard or
any required interim emission reductions or other milestones in any
area.
The CAA ties conformity to attainment and maintenance of the NAAQS.
Conformity therefore applies only in areas that are non-attainment or
maintenance with respect to any of the criteria pollutants under the
CAA: carbon monoxide (CO), lead (Pb), nitrogen dioxide
(NO2), ozone (O3), particulate matter
(PM10), and sulfur dioxide (SO2). The rule covers
direct and indirect emissions of criteria pollutants or their
precursors that are reasonably foreseeable and caused by a Federal
action.
II. Evaluation of the State's Submittal
Pursuant to the requirements under Section 176(c)(4)(C) of the CAA
the Maine DEP submitted a SIP revision to the EPA on October 11, 1996.
The EPA found this submittal to be complete on November 14, 1996. In
its submittal, the State adopted through incorporation by reference,
``EPA's general conformity rule 40 CFR part 51, subpart W,
Secs. 51.850, 51.852, 51.853, 51.854, 51.855, 51.856, 51.857, 51.858,
51.859, and 51.860'' (as published on November 30, 1996 at 58 FR 63247-
63253), in Chapter 141 of the Maine Department of Environmental
Protection Air Regulation entitled, ``Conformity of General Federal
Actions''.
General conformity is required for all areas which are designated
nonattainment or maintenance for any NAAQS criteria pollutant. The
State of Maine currently has six areas where the general conformity
rule must be implemented: three areas designated ozone nonattainment;
one area designated ozone maintenance; one designated particulate
matter (PM10) maintenance area; and one designated sulfur
dioxide (SO2) maintenance area. The ozone areas for which
conformity determinations are required and which are governed by
general conformity include the following counties: Hancock; Waldo;
Knox; Lincoln; Androscoggin; Kennebec; Cumberland, Sagadahoc; York. The
PM10 maintenance area for which conformity determinations
are required and which is governed by general conformity includes a
portion of Aroostock County (within city of Presque Isle). And finally,
the SO2 maintenance area for which conformity determinations
are required and which is governed by general conformity is the
municipality of Millinocket.
III. Statutory and Regulatory References
The Maine Office of Attorney General determined that this SIP
revision will be enforceable pursuant to Maine statutory law (i.e., 38
M.R.S.A. Section 585 which states ``The board may establish and may
amend standards, herein called ``emission standards,'' limiting and
regulating in a just and equitable manner the amount and type of air
contaminants which may be emitted to the ambient air within a region.
Such emission standards shall be designated to prevent air pollution
and to achieve and maintain the ambient air quality
[[Page 49610]]
standards within the region in which applicable'' and 38 M.R.S.A.
Section 585-A which states ``The Board may establish and amend
regulations to implement ambient air quality standards and emission
standards''). Finally, Section 110 of the Clean Air Act Amendments
requires each state to adopt and submit to the Administrator a plan
providing for the implementation, maintenance and enforcement of air
quality standards and control programs.
IV. EPA Action
The EPA is approving the general conformity SIP revision for the
State of Maine. The EPA has evaluated this SIP revision and has
determined that the State has fully adopted the provisions of the
Federal general conformity rules set forth at 40 CFR part 51, subpart
B. The appropriate public participation and comprehensive interagency
consultations have been undertaken during development and adoption of
this SIP revision.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective November 24, 1997, unless, by October 23, 1997, adverse or
critical comments are received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time. If no such comments are received, the public is
advised that this action will be effective November 24, 1997.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any State implementation plan. Each request for revision to
the State implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
V. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866 review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the
Clean Air Act do not create any new requirements but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP approval does not impose any new requirements, the
Administrator certifies that it does not have a significant impact on
any small entities affected. Moreover, due to the nature of the
Federal-State relationship under the CAA, preparation of a flexibility
analysis would constitute Federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
C. Unfunded Mandates Act
Under sections 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action proposed does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new
Federal requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
E. Petitions for Judicial Review
Under Section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by November 24, 1997. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See Section 307(b)(2).) EPA encourages
interested parties to comment in response to the proposed rule rather
than petition for judicial review, unless the objection arises after
the comment period allowed for in the proposal.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides.
Dated: September 9, 1997.
John P. DeVillars,
Regional Administrator, Region I.
Part 52 of chapter I, title 40 of the Code of Federal Regulations
is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
[[Page 49611]]
Authority: 42 U.S.C. 7401-7671q.
Subpart U--Maine
2. Section 52.1020 is amended by adding paragraph (c)(44) to read
as follows:
Sec. 52.1020 Identification of plan.
* * * * *
(c) * * *
(44) Revisions to the State Implementation Plan submitted by the
Maine Department of Environmental Protection on October 11, 1996.
(i) Incorporation by reference.
(A) Letter from the Maine Department of Environmental Protection
dated October 11, 1996 submitting a revision to the Maine State
Implementation Plan.
(B) Chapter 141 of the Maine Department of Environmental Protection
Air Regulation entitled, ``Conformity of General Federal Actions,''
effective in the State of Maine on September 28, 1996.
3. In Sec. 52.1031 Table 52.1031 is amended by adding a new entry
for state citation Chapter 141: General Conformity Rule to read as
follows:
Sec. 52.1031 EPA-approved Maine regulations.
* * * * *
Table 52.1031.--EPA-Approved Rules and Regulations
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Date
State citation Title/subject adopted Date approved by EPA Federal Register 52.1020
by State citation
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* * * * * * *
141................ Conformity of General Federal 9/11/96 September 23, 1997.... 62 FR 49611.......... (c)(44) ``Chapter 141:
Actions. Conformity of
General Federal
Actions''.
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[FR Doc. 97-25230 Filed 9-22-97; 8:45 am]
BILLING CODE 6560-50-P
