05-4709. Approval and Promulgation of Air Quality Implementation Plans; Maine; NOX

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Maine. This revision establishes requirements to reduce emissions of nitrogen oxides from large stationary sources. The intended effect of this action is to approve these requirements into the Maine SIP. EPA is taking this action in accordance with the Clean Air Act (CAA).

DATES:

This direct final rule will be effective May 9, 2005, unless EPA receives adverse comments by April 11, 2005. If EPA receives adverse comments, the Agency will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

When submitting your comments, include the Regional Material in EDocket (RME) ID Number R01-OAR-2005-ME-0001 by one of the following methods:

1. Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.

2. Agency Web site: http://docket.epa.gov/​rmepub/​ Regional Material in EDocket (RME), EPA's electronic public docket and comment system, is EPA's preferred method for receiving comments. Once in the system, select “quick search,” then key in the appropriate RME Docket identification number. Follow the on-line instructions for submitting comments.

3. E-mail: [e-mail].

4. Fax: [phone].

5. Mail: “RME ID Number R01-OAR-2005-ME-0001” David Conroy, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100 (mail code CAQ), Boston, MA 02114-2023.

6. Hand Delivery or Courier. Deliver your comments to: David Conroy, Unit Manager, Air Quality Planning, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, 11th floor, (CAQ), Boston, MA 02114-2023. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

Instructions: Direct your comments to Regional Material in EDocket (RME) ID Number R01-OAR-2005-ME-0001. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://docket.epa.gov/​rmepub/​,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through Regional Material in EDocket (RME), regulations.gov, or e-mail. The EPA RME Web site and the Federal regulations.gov Web site are “anonymous access” systems, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through RME or regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters or any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the Regional Material in EDocket (RME) index at http://docket.epa.gov/​rmepub/​. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in RME or in hard copy at the Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100, 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 Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Christine Sansevero, Air Quality Planning Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100 (CAQ), Boston, MA 02114-2023, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

I. General Information

A. How Can I Get Copies of This Document and Other Related Information?

In addition to the publicly available docket materials available for inspection electronically in Regional Material in EDocket, and the hard copy available at the Regional Office, which are identified in the ADDRESSES section above, copies of the state submittal and EPA's technical support document are also available for public inspection during normal business hours, by appointment at the Bureau of Air Quality Control, Department of Environmental Protection, First Floor of the Tyson Building, Augusta Mental Health Institute Complex, Augusta, ME 04333-0017.

II. Rulemaking Information

This section is organized as follows:

A. What Action is EPA Taking?

B. What are the Requirements of Maine's New Regulation?

C. Why is EPA Approving Maine's Regulation?

D. What is the Process for EPA To Approve This SIP Revision?

A. What Action is EPA Taking?

EPA is approving Maine's Chapter 145, “NO_X Control Program” and incorporating this regulation into the Maine SIP.

B. What are the Requirements of Maine's New Regulation?

Chapter 145 sets year-round NO_X emission limits for all electric generating facilities and industrial sources with a heat input of greater than 250 million British Thermal Units (BTU) per hour located in York, Cumberland, Sagadahoc, Androscoggin, Kennebec, Lincoln, and Knox counties. The rule establishes control requirements for electric generating units (EGUs) and industrial boilers, through both “interim” and “final” emission limits (in pounds per million BTU) as indicated in Table 1 below. The limits are to be met on a 90-day rolling average basis. The rule includes the appropriate testing and recordkeeping requirements to ensure compliance with the specified emission limits. The rule also includes provisions for averaging emissions between units in certain circumstances as well as appropriate monitoring requirements.

Table 1.—Interim and Final Emission Limits for Large Stationary Sources

Affected source	Interim limits June 15, 2003 thru December 30, 2004	Final limits December 30, 2004
Fossil fuel fired EGU with heat input less than 750 mmBTU/hr	0.27 lbs/mmBTU	0.22 lbs/mmBTU.
Fossil fuel fired EGU with heat input greater than or equal to 750 mmBTU/hr	0.19 lbs/mmBTU	0.15 lbs/mmBTU.
Fossil fuel fired heat exchangers, primary boilers and resource recovery units with heat input greater than 250 mmBTU/hr	0.20 lbs/mmBTU	0.20 lbs/mmBTU.

While an affected source must comply with the interim limits, the regulation provides for alternative emission limitations for sources that cannot meet the final emission limits using NO_X control technology approved by the Maine Department of Environmental Protection Commissioner or Maine Board of Environmental Protection under Chapter 145. If an affected source fails to meet the final emission limitation after installing the approved NO_X control technology, they can apply to the Board to establish an alternative emission limitation based on the actual performance of the NO_X control technology. Affected sources must apply to the Board for an alternative emission limit by January 1, 2005. The Board will process any application for alternative emission limits as a license amendment.

The authority to establish alternative emission limits is the functional equivalent of a director's discretion provision. Director's discretion provisions are not acceptable for inclusion in SIPs if the state is relying on the provision to satisfy a Clean Air Act requirement, or to receive credit under its SIP for enforceable emission reductions. Chapter 145, however, is an additional control measure undertaken by Maine that goes beyond what is minimally required by the Clean Air Act. This rule is not meant to implement a Reasonably Available Control Technology requirement and Maine is not covered by the NO_X SIP call. Therefore, EPA is approving this rule as a SIP strengthening measure despite the provision allowing the Board to set alternative limits. Fortunately, the rule limits the time frame for requesting an alternative limit; after January 1, 2005 no source may apply for such a limit. As a result, we now know the universe of emissions units that may be receiving an alternative limit. Imposing a limit on the time frame to request an alternate limit has the effect of eliminating the operation of the director's discretion provision after passage of this deadline.

Maine DEP has notified EPA that, on December 28, 2004, one such affected facility, FPL Energy, submitted an application for alternative emission limits for units 3 and 4 of their Wyman station in Yarmouth, Maine. Once the Board has made a final determination of the alternative limits for units 3 and 4 at Wyman Station, EPA and the public will know what emissions limits are in effect under the rule for these units. Moreover, Maine DEP has committed to submit any alternative emission limits to EPA as a single-source SIP revision ^[1] . Once the state establishes those limits in an operating license and submits them to EPA for approval as a revision to the SIP, EPA will be able to assign SIP credit for the final emission limits for these units, and there will be no further opportunity for the state to change the limits under the rule unless it is done as a revision to the SIP.

C. Why is EPA Approving Maine's Regulation?

EPA has evaluated Maine's Chapter 145 and has determined that this regulation strengthens the existing SIP requirements for large stationary sources. The specific requirements of the regulation and EPA's evaluation of these requirements are detailed in a memorandum dated January 24, 2005, entitled “Technical Support Document—Maine—NO_X Control Program Regulation” (TSD). The TSD and Maine's Chapter 145 are available in the docket supporting this action.

D. What is the Process for EPA To Approve This SIP Revision?

The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This action will be effective May 9, 2005, without further notice unless the EPA receives adverse comments by April 11, 2005.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on May 9, 2005, and no further action will be taken on the proposed rule.

III. Final Action

EPA is approving Maine's Chapter 145, “NO_X Control Program” and incorporating this regulation into the Maine SIP.

IV. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit 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 United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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 May 9, 2005. Interested parties should 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. 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).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by

Dated: February 18, 2005.

Robert W. Varney,

Regional Administrator, EPA New England.

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:

Authority: 42 U.S.C. 7401 et seq.

Subpart U—Maine

2. Section 52.1020 is amended by adding paragraph (c)(56) to read as follows:

§ 52.1020

Identification of plan.

* * * * *

(c) * * *

(56) Revisions to the State Implementation Plan submitted by the Maine Department of Environmental Protection on February 12, 2004.

(i) Incorporation by reference.

(A) Chapter 145 of the Maine Department of Environmental Protection Regulations, “NO_X Control Program,” effective in the State of Maine on July 22, 2001.

(ii) Additional materials.

(A) Nonregulatory portions of the submittal.

3. In § 52.1031, Table 52.1031 is amended by adding a new state citation, 145, in numerical order to read as follows:

§ 52.1031

EPA-approved Maine regulations.

* * * * *

Table 52.1031.—EPA-Approved Rules and Regulations

State citation	Title/subject	Date adopted by State	Date approved by EPA	Federal Register citation	52.1020
*         *         *         *         *         *         *
145	NOX Control Program	6/21/01	4/10/05	[Insert FR citation from published date]	(c)(56).
Note.—1. The regulations are effective statewide unless stated otherwise in comments section.

Footnotes

1.  See response to comment number 108 on page 95 of DEP's Supplemental Basis Statement for Chapter 145.