[Federal Register Volume 71, Number 23 (Friday, February 3, 2006)]
[Rules and Regulations]
[Pages 5791-5794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-984]
[[Page 5791]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R01-OAR-2005-ME-0007; A-1-FRL-8027-5]
Approval and Promulgation of Air Quality Implementation Plans;
Maine; Nitrogen Oxides Exemption Request for Northern Maine
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving a request for an exemption from the
requirements for the control of nitrogen oxide (NOX)
emissions contained in section 182(f) of the Clean Air Act (CAA or Act)
for northern Maine (specifically Aroostook, Franklin, Oxford,
Penobscot, Piscataquis, Somerset, Washington, and portions of Hancock
and Waldo Counties). This exemption request, submitted by the State of
Maine, is based on a demonstration that NOX emissions in the
exemption area are not impacting Maine's ozone nonattainment areas or
other ozone nonattainment areas in the Ozone Transport Region (OTR)
during times when elevated ozone levels are monitored in those areas.
As such, additional reductions in NOX emissions from this
area beyond what the state regulations already provide for are not
necessary for future attainment in any of Maine's ozone nonattainment
areas or any other ozone nonattainment area in the OTR. Thus, as
provided for in section 182(f)(2), additional NOX reductions
in these areas constitute excess reductions, and EPA will waive them.
DATES: Effective Date: This rule will become effective on March 6,
2006.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R01-OAR-2004-ME-0007. All documents in the
docket are listed on the http://www.regulations.gov web site. 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
through http://www.regulations.gov 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 to 4:30 excluding legal holidays.
Copies of the documents relevant to this action 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.
FOR FURTHER INFORMATION CONTACT: Richard P. Burkhart, 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. Phone: 617-918-1664, Fax: (617)
918-0664, E-mail: [email protected].
SUPPLEMENTARY INFORMATION: On August 24 , 2005 (70 FR 49526), EPA
published a Notice of Proposed Rulemaking (NPR) for the State of Maine.
The NPR proposed approval of a request for an exemption from the
requirements for NOX control contained in section 182(f) of
the Clean Air Act for northern Maine. Specifically the area includes
Aroostook, Franklin, Oxford, Penobscot, Piscataquis, Somerset,
Washington, and portions of Hancock and Waldo Counties. The portions of
Waldo and Hancock Counties included are those that are designated
unclassifiable/attainment for the 8-hour ozone standard. In Waldo
County, this includes only the following towns: Belfast, Belmont,
Brooks, Burnham, Frankfort, Freedom, Jackson, Knox, Liberty,
Lincolnville, Monroe, Montville, Morrill, Northport, Palermo, Prospect,
Searsmont, Searsport, Stockton Springs, Swanville, Thorndike, Troy,
Unity, Waldo, and Winterport. In Hancock County, this includes only the
following towns and townships: Amherst, Aurora, Bucksport, Castine,
Dedham, Eastbrook, Ellsworth, Franklin, Great Pond, Mariaville, Orland,
Osborn, Otis, Penobscot, Verona, Waltham, Oqiton Township (T4 ND), T3
ND, T39 MD, T40 MD, T41 MD, T32 MD, T34 MD, T35 MD, T28 MD, T22 MD, T16
MD, T8 SD, T9 SD, T10 SD, and T7 SD. The Maine Department of
Environmental Protection (DEP) submitted the request on March 24, 2005,
with supplemental submittals on April 19, 2005 and June 28, 2005.
EPA received two sets of comments on the August 24 , 2005 Notice of
Proposed Rulemaking. One comment was from McCain Foods USA, Inc. in
Easton, Maine, which supported Maine DEP's NOX exemption
request for northern Maine. The other comments were from the Penobscot
Indian Nation, which had concerns about the NOX exemption
request. EPA offers the following in response to the adverse comments
received. Other information and the rationale for EPA's action are
explained in the NPR and technical support document and will not be
restated here.
Response to Comments
Comment 1. The commenter raised concerns about the lack of tribal
consultation with EPA on this rulemaking.
Response 1: EPA took appropriate steps to provide Maine tribes with
the opportunity to consult with EPA concerning the proposed rulemaking.
Prior to signature of the Notice of Proposed Rulemaking, EPA sent an e-
mail to all of the tribes in Maine summarizing Maine DEP's
NOX exemption request and EPA's forthcoming Notice of
Proposed Rulemaking. In the message, EPA invited the tribes to contact
us if they had any questions on the forthcoming proposed rulemaking.
EPA also invited the tribes to submit any comments they had on the
proposed action, and the Penobscot Nation did submit comments. In
addition to the responses to the Penobscot Nation's comments presented
in this notice, EPA held a conference call with representatives of the
Nation and the Passamaquoddy Tribe on November 2, 2005 to explain to
the tribes the Agency's reasons for approving this NOX
waiver. See memorandum to the docket for this action dated November 3,
2005 describing the call.
Comment 2. The commenter raised concerns, that because Maine is not
included in the Clean Air Interstate Rule (CAIR), there needs to be a
mechanism to reduce NOX emissions in Maine. The commenter
acknowledged that NOX emissions in the exemption area are
not the only reason for increased ozone levels in Maine, but appears to
believe that reducing these emissions ``would influence the development
of ozone in some areas.'' The commenter asked for an explanation of why
northern Maine NOX sources should be exempt from reasonably
available control technology (RACT) controls.
Response 2: EPA acknowledges that Maine is not required to adopt
additional NOX controls pursuant to EPA's CAIR rule. The
proposed rulemaking notice for Maine DEP's NOX exemption
request explains that EPA
[[Page 5792]]
ozone modeling performed to support the CAIR rule demonstrates that
Maine's NOX emissions are not contributing significantly to
future ozone nonattainment anywhere in the eastern United States. Thus,
EPA is not requiring the State of Maine to adopt further NOX
controls to help mitigate interstate ozone transport. This finding adds
support to Maine DEP's NOX exemption request.
In addition, as explained fully in the August 24, 2005 Notice of
Proposed Rulemaking and the technical support document, EPA agrees with
Maine DEP's demonstration that NOX emissions in the
exemption area are not impacting Maine's nonattainment areas or other
nonattainment areas in the Ozone Transport Region during times when
elevated ozone levels are monitored in those areas. The commenter does
not offer any scientific evidence that disputes this assertion. As
such, EPA sees no basis for changing our conclusion that additional
reductions of NOX emissions from the waiver area beyond what
the state regulations already provide for would not contribute to and
would not be necessary for future attainment in any of Maine's ozone
nonattainment areas or other ozone nonattainment areas in the OTR. In
acting on the NOX waiver request for northern Maine under
the one-hour standard the Agency adapted our guidance to address the
circumstances of this attainment/unclassifiable area in the extreme
northeast corner of the OTR, and EPA's approach here is consistent with
that taken in approving the one-hour NOX waiver. 60 FR 66748
(Dec. 26, 1995).
Moreover, based on preliminary 2003-2005 ozone air quality data,
each of Maine's ozone nonattainment areas now have air quality better
than the 8-hour ozone standard. We believe that it is likely that once
the 2005 data have been quality assured and quality controlled,
attainment with the 8-hour ozone standard will be shown throughout the
State of Maine. As this improvement in air quality occurred without
additional NOX reductions resulting from the installation of
RACT in the northern Maine waiver area, it supports the conclusion that
additional reductions in NOX emissions from the waiver area
beyond what the state regulations already provide for are not necessary
for future attainment in any of Maine's ozone nonattainment areas.
Comment 3. The commenter had concerns with the EPA statement that
this NOX exemption, if granted, will not have tribal
implications.
Response 3: EPA is required to review new rules for tribal
implications. In the NPR, EPA stated that ``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 (59 FR 22951, November 9,
2000).'' This statement was based on our conclusion that the action of
approving a NOX exemption under the Clean Air Act for
northern Maine will not result in the imposition of any new CAA
requirements on tribes or impact any existing sources of air pollution
on tribal lands. Furthermore, EPA agrees with DEP's analysis that shows
NOX emissions in the waiver area do not contribute to the
elevated ozone levels in Maine. Therefore, EPA concluded that this
action would not have a substantial effect on air quality in tribal
lands. Again, EPA has not seen any evidence that would cause the Agency
to change this conclusion.
Final Action: EPA is approving a request for an exemption from the
requirements contained in section 182(f) of the Clean Air Act. This
approval exempts major sources of nitrogen oxides in Aroostook,
Franklin, Oxford, Penobscot, Piscataquis, Somerset, Washington, and
portions of Hancock and Waldo Counties from (1) the requirements to
implement controls meeting reasonably available control technology
under the Clean Air Act, and (2) nonattainment area new source review
(NSR) for new sources and modifications. If EPA determines based on
future air quality analyses that NOX controls in these areas
are necessary, EPA may initiate rulemaking to revoke this
NOX exemption.
I. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993 we must
determine whether a regulatory action is ``significant'' and,
therefore, subject to review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order. The Executive Order
defines ``significant regulatory action'' as one that is likely to
result in a rule that may: (1) Have an annual effect on the economy of
$100 million or more or adversely affect in a material way the economy,
a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs, or the rights and obligations of recipients
thereof; or (4) raise novel or legal or policy issues arising out of
legal mandates, the President's priorities, or the principles set forth
in the Executive Order.
OMB has exempted this regulatory action from Executive Order 12866
review.
B. Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must
approve all ``collections of information'' by EPA. The Act defines
``collection of information'' as a requirement for ``answers to * * *
identical reporting or recordkeeping requirements imposed on ten or
more persons * * *'' 44 U.S.C. 3502(3)(A). This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995.
``Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.''
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
[[Page 5793]]
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This final
rule will not impose any requirements on small entities. This waiver
approval under section 182(f) of the Clean Air Act does not create any
requirements on small entities but simply approves a State's request
for an exemption from Federal requirements.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal Agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under sections 202 of the Unfunded
Mandates Reform Act of 1995, signed into law on March 22, 1995, EPA
must prepare a written statement, including a cost-benefit analysis,
for propose and final rules with ``Federal mandates'' 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. Before
promulgating an EPA rule for which a written statement is needed,
section 205 of the UMRA generally requires EPA to identify and consider
a reasonable number of regulatory alternatives and adopt a least
costly, most cost effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an Alternative other than the least
costly, most cost effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have a meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that the approval action promulgated 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 a
waiver request and imposes no new requirements. Therefore, today's rule
is not subject to the requirements of sections 202 and 205 of the UMRA.
Accordingly, no additional costs to State, local, or tribal
governments, or to the private sector, result from this action.
Therefore, EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect the small
governments.
E. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
This rule does not have federalism implications. This rule will 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, because it merely approves a
state request for a waiver from Federal requirements, and does not
alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.
F. Executive Order 13175, Coordination With Indian Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in Executive Order 13175, because the
action of approving a NOX exemption under the Clean Air Act
for northern Maine will not result in any new CAA requirements on
tribes, impact any existing sources of air pollution on tribal lands,
nor impair the maintenance of ozone national ambient air quality
standards in tribal lands. Thus, Executive Order 13175 does not apply
to this rule.
Although Executive Order 13175 does not apply to this rule, EPA e-
mailed a description of this action to the Indian tribes in Maine
before publication of the Notice of Proposed Rulemaking informing them
of our proposed action. The Region also offered to discuss the waiver
with the tribes. One Indian tribe commented on this action, and EPA's
response to those concerns is provided in the Response to Comments
section of this rulemaking.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045: Protection of Children from Environmental
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to
any rule that: (1) Is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it is not
a significant regulatory action under Executive Order 12866, and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children [additional reductions in
NOX emissions from this area beyond what the state
regulations already provide for are not necessary for future attainment
in any of Maine's ozone nonattainment areas or any other ozone
nonattainment area in the Ozone Transport Region].
[[Page 5794]]
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
As noted in the proposed rule, section 12(d) of the National
Technology Transfer and Advancement Act (NTTAA) of 1995, Public Law
104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards that are developed or
adopted by voluntary consensus standard bodies. The NTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
The EPA believes that VCS are inapplicable to this action.
This waiver of certain control requirements does not require the
public to perform activities to which to the use of VCS would be
relevant.
J. Congressional Review Act
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). This rule will be effective March 6, 2006.
K. 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 April 4, 2006. 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, Intergovernmental
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements.
Dated: January 27, 2006.
Stephen L. Johnson,
Administrator.
0
Part 52 of chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart U--Maine
0
2. Section 52.1023 is amended by adding paragraph (d) to read as
follows:
Sec. 52.1023 Control strategy: Ozone.
* * * * *
(d) Approval. EPA is approving an exemption request from the
NOX requirements contained in Section 182(f) of the Clean
Air Act for northern Maine. The exemption request was submitted by the
Maine Department of Environmental Protection on March 24, 2005, and
supplemented on April 19 and June 28, 2005. This approval exempts major
sources of nitrogen oxides in Aroostook, Franklin, Oxford, Penobscot,
Piscataquis, Somerset, Washington, and portions of Hancock and Waldo
Counties from the requirements to implement controls meeting reasonably
available control technology under the Clean Air Act, and nonattainment
area new source review (NSR) for new sources and modifications. In
Waldo County, this area includes only the following towns: Belfast,
Belmont, Brooks, Burnham, Frankfort, Freedom, Jackson, Knox, Liberty,
Lincolnville, Monroe, Montville, Morrill, Northport, Palermo, Prospect,
Searsmont, Searsport, Stockton Springs, Swanville, Thorndike, Troy,
Unity, Waldo, and Winterport. In Hancock County, this area includes
only the following towns and townships: Amherst, Aurora, Bucksport,
Castine, Dedham, Eastbrook, Ellsworth, Franklin, Great Pond,
Mariaville, Orland, Osborn, Otis, Penobscot, Verona, Waltham, Oqiton
Township (T4 ND), T3 ND, T39 MD, T40 MD, T41 MD, T32 MD, T34 MD, T35
MD, T28 MD, T22 MD, T16 MD, T8 SD, T9 SD, T10 SD, and T7 SD.
[FR Doc. 06-984 Filed 2-2-06; 8:45 am]
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