[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 
(NO<INF>2</INF>), ozone (O<INF>3</INF>), particulate matter 
(PM<INF>10</INF>), and sulfur dioxide (SO<INF>2</INF>). 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 (PM<INF>10</INF>) maintenance area; and one designated sulfur 
dioxide (SO<INF>2</INF>) 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 
PM<INF>10</INF> 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 SO<INF>2</INF> 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]
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