[Federal Register Volume 83, Number 58 (Monday, March 26, 2018)]
[Proposed Rules]
[Pages 12905-12917]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-06006]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2017-0117; FRL-9975-53-Region 1]


Approval and Promulgation of Air Quality Implementation Plans; 
Maine; Infrastructure State Implementation Plan Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve elements of State Implementation Plan (SIP) submissions from 
Maine regarding the infrastructure requirements of the Clean Air Act 
(CAA or Act) for the 2008 lead (Pb), 2008 ozone, and 2010 nitrogen 
dioxide (NO2) National Ambient Air Quality Standards 
(NAAQS). EPA is also proposing to conditionally approve one element of 
Maine's infrastructure SIP. Finally, EPA is proposing to approve 
several statutes submitted by Maine in support of its demonstrations 
that the infrastructure requirements of the CAA have been met. 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.

DATES: Comments must be received on or before April 25, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2017-0117 at https://www.regulations.gov, or via email to 
[email protected]. 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, the 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. The 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 www.epa.gov/dockets/commenting-epa-dockets.
    Publicly available docket materials are available either 
electronically in https://www.regulations.gov or at the U.S. 
Environmental Protection Agency, Region 1, Air Programs Branch, 5 Post 
Office Square, Boston, Massachusetts. This facility is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. 
The interested persons wanting to examine these documents should make 
an appointment with the office at least 24 hours in advance.

FOR FURTHER INFORMATION CONTACT: Richard P. Burkhart, Air Quality 
Planning Unit, Air Programs Branch (Mail Code OEP05-02), U.S. 
Environmental Protection Agency, Region 1, 5 Post Office Square, Suite 
100, Boston, Massachusetts, 02109-3912; (617) 918-1664; 
[email protected].

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 should I consider as I prepare my comments for EPA?
II. What is the background of these SIP submissions?
    A. Which Maine SIP submissions does this rulemaking address?
    B. Why did the state make these SIP submissions?
    C. What is the scope of this rulemaking?
III. What guidance is EPA using to evaluate these SIP submissions?
IV. What is the result of EPA's review of these SIP submissions?
    A. Section 110(a)(2)(A)--Emission Limits and Other Control 
Measures

[[Page 12906]]

    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
    D. Section 110(a)(2)(D)--Interstate Transport
    E. Section 110(a)(2)(E)--Adequate Resources
    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
    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
    N. Maine Statute and Executive Order Submitted for Incorporation 
Into the SIP
V. What action is EPA taking?
VI. Incorporation by Reference.
VII. Statutory and Executive Order Reviews.

I. What should I consider as I prepare my comments for EPA?

    When submitting comments, remember to:
    1. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date, and page number).
    2. Follow directions--EPA may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    3. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information 
and/or data that you used.
    5. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    6. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    7. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    8. Make sure to submit your comments by the comment period deadline 
identified.

II. What is the background of these SIP submissions?

A. Which Maine SIP submissions does this rulemaking address?

    This rulemaking addresses submissions from the Maine Department of 
Environmental Protection (ME DEP). The state submitted its 
infrastructure SIP for each NAAQS on the following dates: 2008 Pb--
August 21, 2012; 2008 ozone--June 7, 2013; and 2010 NO2--
June 7, 2013. Also, on April 23, 2013, Maine DEP submitted a SIP 
revision to incorporate conflict of interest state law provisions into 
the SIP from 38 Maine Revised Statutes Annotated (MRSA) Section 341-
C(7) and 5 MRSA Section 18. The April 23, 2013 SIP revision addresses 
element E(ii) requirements. Furthermore, on February 14, 2013, Maine 
submitted a SIP revision addressing amendments to certain provisions of 
06-096 Code of Maine Regulations (CMR) Chapters 100 and 115. The 
February 14, 2013 SIP revision both defines PM2.5 and 
incorporates PM2.5 into the Prevention of Significant 
Deterioration (PSD) permitting program. This submission was 
supplemented on May 31, 2016. EPA approved these SIP revisions on 
August 1, 2016 (81 FR 50353) and June 24, 2014 (79 FR 35695). These 
revisions address element A, as well as elements C, D(i)(II), and (J) 
as they relate to PSD. Finally, on March 1, 2018, Maine submitted a 
letter providing information and clarification in support of its 
infrastructure SIP submittals.

B. Why did the state make these SIP submissions?

    Under sections 110(a)(1) and (2) of the CAA, states are required to 
submit infrastructure SIPs to ensure that their SIPs provide for 
implementation, maintenance, and enforcement of the NAAQS, including 
the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. These 
submissions must contain any revisions needed for meeting the 
applicable SIP requirements of section 110(a)(2), or certifications 
that their existing SIPs for the NAAQS already meet those requirements.
    EPA highlighted this statutory requirement 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 Memo). 
On September 25, 2009, EPA issued an additional guidance document 
pertaining to the 2006 PM2.5 NAAQS entitled ``Guidance on 
SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) National Ambient Air Quality 
Standards (NAAQS)'' (2009 Memo), followed by the October 14, 2011, 
``Guidance on Infrastructure SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality 
Standards (NAAQS)'' (2011 Memo). Most recently, EPA issued ``Guidance 
on Infrastructure State Implementation Plan (SIP) Elements under Clean 
Air Act Sections 110(a)(1) and (2)'' on September 13, 2013 (2013 Memo). 
The SIP submissions referenced in this rulemaking pertain to the 
applicable requirements of sections 110(a)(1) and (2) and address the 
2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

C. What is the scope of this rulemaking?

    EPA is acting upon the SIP submissions from Maine that address the 
infrastructure requirements of CAA sections 110(a)(1) and (2) for the 
2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.
    The requirement for states to make an infrastructure SIP submission 
arises out of CAA sections 110(a)(1) and (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 (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

[[Page 12907]]

provisions for 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 scope of this rulemaking?'' 
See 79 FR 27241 at 27242-45.

III. What guidance is EPA using to evaluate these SIP submissions?

    EPA reviews each infrastructure SIP submission for compliance with 
the applicable statutory provisions of section 110(a)(2), as 
appropriate. Historically, EPA has elected to use non-binding guidance 
documents to make recommendations for states' development and EPA 
review of infrastructure SIPs, in some cases conveying needed 
interpretations on newly arising issues and in some cases conveying 
interpretations that have already been developed and applied to 
individual SIP submissions for particular elements. EPA guidance 
applicable to these infrastructure SIP submissions is embodied in 
several documents. Specifically, attachment A of the 2007 Memo 
(Required Section 110 SIP Elements) identifies the statutory elements 
that states need to submit in order to satisfy the requirements for an 
infrastructure SIP submission. The 2009 Memo provides additional 
guidance for certain elements regarding the 2006 PM2.5 
NAAQS, and the 2011 Memo provides guidance specific to the 2008 Pb 
NAAQS. Lastly, the 2013 Memo identifies and further clarifies aspects 
of infrastructure SIPs that are not NAAQS-specific.

IV. What is the result of EPA's review of these SIP submissions?

    EPA is soliciting comment on our evaluation of Maine's 
infrastructure SIP submissions in this notice of proposed rulemaking. 
In each of Maine's submissions, a detailed list of Maine Laws and, 
previously SIP-approved Air Quality Regulations, show precisely how the 
various components of Maine's EPA-approved SIP meet each of the 
requirements of section 110(a)(2) of the CAA for the 2008 Pb, 2008 
ozone, and 2010 NO2 NAAQS, as applicable. 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) 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.\1\ 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.
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    \1\ 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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    Maine's infrastructure submittals for this element cite 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. Maine DEP statutory authority with respect to air quality is set 
out in 38 MRSA Chapter 4, ``Protection and Improvement of Air.'' 
Legislative authority giving DEP general authority to promulgate 
Regulations is codified at 38 MRSA Chapter 2, Subchapter 1: 
``Organization and Powers.'' \2\ 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.
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    \2\ Maine 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.
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    The Maine submittals cite more than two dozen specific rules that 
the state has adopted to control the emissions of Pb, volatile organic 
compounds \3\ (VOCs), and NOX. A few, with their EPA 
approval citation are listed here: 06-096 Code of Maine Regulations 
(CMR) Chapter 102, ``Open Burning Regulation'' (73 FR 9459, February 
21, 2008); 06-096 CMR Chapter 103, ``Fuel Burning Equipment Particulate 
Emission Standard'' (50 FR 7770, February 26, 1985); and 06-096 CMR 
Chapter 130, ``Solvent Cleaners'' (70 FR 30367, May 26, 2005); Chapter 
152, ``Control of Emissions of Volatile Organic Compounds from Consumer 
Products'' (77 FR 30216, May 22, 2012). The Maine regulations listed 
above were previously approved into the Maine SIP by EPA. See 40 CFR 
52.1020. Furthermore, on August 21, 2012, Maine submitted a SIP 
revision containing Maine's updated Chapter 110, ``Ambient Air Quality 
Standards.'' The updates to Maine's regulation relevant to today's 
action include updating Maine's ambient air quality standards to be 
consistent with the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. 
EPA approved this SIP revision on June 24, 2014 (79 FR 35695).
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    \3\ VOCs and NOx contribute to the formation of ground-level 
ozone. NOx contribute to the formation of NO2.
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    Based upon EPA's review of Maine's infrastructure SIP submittals 
and Maine's updated Chapter 110 SIP submittal, EPA proposes that Maine 
meets the infrastructure SIP requirements of section 110(a)(2)(A) with 
respect to the 2008 Pb, 2008 ozone, and 2010 NO2 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 include provisions to provide for 
establishing and operating ambient air quality monitors, collecting and 
analyzing ambient air quality data, and making these 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 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, Maine DEP operates an air quality monitoring network, and 
EPA approved the state's most recent Annual Air Monitoring Network Plan 
for Pb, ozone, and NO2 on August 23, 2017.\4\ Furthermore, 
ME DEP populates AQS with air quality monitoring data in a timely 
manner, and provides EPA with

[[Page 12908]]

prior notification when considering a change to its monitoring network 
or plan. EPA proposes that ME DEP has met the infrastructure SIP 
requirements of section 110(a)(2)(B) with respect to the 2008 Pb, 2008 
ozone, and 2010 NO2 NAAQS.
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    \4\ See EPA approval letter located in the docket for this 
action.
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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.
Sub-Element 1: Enforcement of SIP Measures
    Maine's authority for enforcing SIP measures is established in 38 
MRSA Section 347-A, ``Violations,'' 38 MRSA Section 347-C, ``Right of 
inspection and entry,'' 38 MRSA Section 348, ``Judicial Enforcement,'' 
38 MRSA Section 349, ``Penalties,'' and 06-096 CMR Chapter 115, ``Major 
and Minor Source Air Emission License Regulations,'' and includes 
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 Pb, PM2.5, VOC and 
NOX. EPA proposes that Maine has met the enforcement of SIP 
measures requirements of section 110(a)(2)(C) with respect to the 2008 
Pb, 2008 ozone, and 2010 NO2 NAAQS.
Sub-Element 2: PSD Program for Major Sources and Major Modifications
    Prevention of significant deterioration (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. Maine DEP's EPA-
approved PSD rules, contained at 06-096 CMR Chapter 115, ``Major and 
Minor Source Air Emission License Regulations,'' contain provisions 
that address applicable requirements for all regulated NSR pollutants, 
including Greenhouse Gases (GHGs).
    EPA's ``Final Rule to Implement the 8-Hour Ozone National Ambient 
Air Quality Standard--Phase 2; Final Rule to Implement Certain Aspects 
of the 1990 Amendments Relating to New Source Review and Prevention of 
Significant Deterioration as They Apply in Carbon Monoxide, Particulate 
Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline'' (Phase 
2 Rule) was published on November 29, 2005 (70 FR 71612). Among other 
requirements, the Phase 2 Rule obligated states to revise their PSD 
programs to explicitly identify NOX as a precursor to ozone. 
See 70 FR 71679. This requirement was codified in 40 CFR 51.166, and 
requires that states submit SIP revisions incorporating the 
requirements of the rule, including provisions that would treat 
NOX as a precursor to ozone provisions. These SIP revisions 
were to have been submitted to EPA by states by June 15, 2007. See 70 
FR 71683.
    Maine has adopted, and EPA has approved, rules addressing the 
changes to 40 CFR 51.166 required by the Phase 2 Rule, including 
amending its SIP to include NOX and VOC as precursor 
pollutants to ozone, in order to define what constitutes a 
``significant'' increase in actual emissions from a source of air 
contaminants. See 81 FR 50353 (August 1, 2016). Therefore, we propose 
to approve Maine's infrastructure SIP submittals for the 2008 Pb, 2008 
ozone, and 2010 NO2 NAAQS with respect to the requirements 
of the Phase 2 Rule and the PSD sub-element of section 110(a)(2)(C).
    On May 16, 2008 (73 FR 28321), EPA issued the Final Rule on the 
``Implementation of the New Source Review (NSR) Program for Particulate 
Matter Less than 2.5 Micrometers (PM2.5)'' (2008 NSR Rule). 
The 2008 NSR Rule finalized several new requirements for SIPs to 
address sources that emit direct PM2.5 and other pollutants 
that contribute to secondary PM2.5 formation. One of these 
requirements is for NSR permits to address pollutants responsible for 
the secondary formation of PM2.5, otherwise known as 
precursors. In the 2008 rule, EPA identified precursors to 
PM2.5 for the PSD program to be SO2 and 
NOX (unless the state demonstrates to the Administrator's 
satisfaction or EPA demonstrates that NOX emissions in an 
area are not a significant contributor to that area's ambient 
PM2.5 concentrations). The 2008 NSR Rule also specifies that 
VOCs are not considered to be precursors to PM2.5 in the PSD 
program unless the state demonstrates to the Administrator's 
satisfaction or EPA demonstrates that emissions of VOCs in an area are 
significant contributors to that area's ambient PM2.5 
concentrations.
    The explicit references to SO2, NOX, and VOCs 
as they pertain to secondary PM2.5 formation are codified at 
40 CFR 51.166(b)(49)(i)(b) and 40 CFR 52.21(b)(50)(i)(b). As part of 
identifying pollutants that are precursors to PM2.5, the 
2008 NSR Rule also required states to revise the definition of 
``significant'' as it relates to a net emissions increase or the 
potential of a source to emit pollutants. Specifically, 40 CFR 
51.166(b)(23)(i) and 40 CFR 52.21(b)(23)(i) define ``significant'' for 
PM2.5 to mean the following emissions rates: 10 tons per 
year (tpy) of direct PM2.5; 40 tpy of SO2; and 40 
tpy of NOX (unless the state demonstrates to the 
Administrator's satisfaction or EPA demonstrates that NOX 
emissions in an area are not a significant contributor to that area's 
ambient PM2.5 concentrations). The deadline for states to 
submit SIP revisions to their PSD programs incorporating these changes 
was May 16, 2011. See 73 FR 28321 at 28341.\5\
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    \5\ EPA notes that on January 4, 2013, the U.S. Court of Appeals 
for the DC Circuit, in Natural Resources Defense Council v. EPA, 706 
F.3d 428 (DC Cir.), held that EPA should have issued the 2008 NSR 
Rule in accordance with the CAA's requirements for PM10 
nonattainment areas (Title I, part D, subpart 4), and not the 
general requirements for nonattainment areas under subpart 1 
(Natural Resources Defense Council v. EPA, No. 08-1250). As the 
subpart 4 provisions apply only to nonattainment areas, EPA does not 
consider the portions of the 2008 rule that address requirements for 
PM2.5 attainment and unclassifiable areas to be affected 
by the court's opinion. Moreover, EPA does not anticipate the need 
to revise any PSD requirements promulgated by the 2008 NSR rule in 
order to comply with the court's decision. Accordingly, EPA's 
approval of Maine's infrastructure SIP as to Elements C, D(i)(II), 
or J with respect to the PSD requirements promulgated by the 2008 
implementation rule does not conflict with the court's opinion.
    The Court's decision with respect to the nonattainment NSR 
requirements promulgated by the 2008 implementation rule also does 
not affect EPA's action on the present infrastructure action. EPA 
interprets the CAA to exclude nonattainment area requirements, 
including requirements associated with a nonattainment NSR program, 
from infrastructure SIP submissions due three years after adoption 
or revision of a NAAQS. Instead, these elements are typically 
referred to as nonattainment SIP or attainment plan elements, which 
would be due by the dates statutorily prescribed under subpart 2 
through 5 under part D, extending as far as 10 years following 
designations for some elements.
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    On August 1, 2016, EPA approved revisions to Maine's PSD program at 
81 FR 50353 that identify SO2 and NOX as 
precursors to PM2.5 and revise the state's

[[Page 12909]]

regulatory definition of ``significant'' for PM2.5 to mean 
10 tpy or more of direct PM2.5 emissions, 40 tpy or more of 
SO2 emissions, or 40 tpy or more of NOX 
emissions.
    The 2008 NSR Rule did not require states to immediately account for 
gases that could condense to form particulate matter, known as 
condensables, in PM2.5 and PM10 emission limits 
in NSR permits. Instead, EPA determined that states had to account for 
PM2.5 and PM10 condensables for applicability 
determinations and in establishing emissions limitations for 
PM2.5 and PM10 in PSD permits beginning on or 
after January 1, 2011. See 73 FR 28321 at 28334. This requirement is 
codified in 40 CFR 51.166(b)(49)(i)(a) and 40 CFR 52.21(b)(50)(i)(a).
    Maine's SIP-approved PSD program defines PM2.5 and 
PM10 emissions in such a manner that gaseous emissions which 
would condense under ambient conditions are treated in an equivalent 
manner as required by EPA's definition of ``regulated air pollutant'' 
in 40 CFR 51.166((b)(49)(i)(a). EPA approved these definitions into the 
SIP on August 1, 2016. See 81 FR 50353. Consequently, we propose that 
the state's PSD program adequately accounts for the condensable 
fraction of PM2.5 and PM10. Therefore, we propose 
to approve Maine's infrastructure SIP submittals for the 2008 Pb, 2008 
ozone, and 2010 NO2 NAAQS with respect to the requirements 
of the 2008 NSR Rule and the PSD sub-element of section 110(a)(2)(C).
    On October 20, 2010 (75 FR 64864), EPA issued the final rule on the 
``Prevention of Significant Deterioration (PSD) for Particulate Matter 
Less Than 2.5 Micrometers (PM2.5)--Increments, Significant 
Impact Levels (SILs) and Significant Monitoring Concentration (SMC)'' 
(2010 NSR Rule). This rule established several components for making 
PSD permitting determinations for PM2.5, including a system 
of ``increments,'' which is the mechanism used to estimate significant 
deterioration of ambient air quality for a pollutant. These increments 
are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c). On June 24, 2014 
(79 FR 35695), EPA approved PM2.5 increments in 06-096 CMR 
Chapter 110 of Maine's regulations.
    The 2010 NSR Rule also established a new ``major source baseline 
date'' for PM2.5 as October 20, 2010, and a new trigger date 
for PM2.5 of October 20, 2011 in the definition of ``minor 
source baseline date.'' These revisions are codified in 40 CFR 
51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and 40 CFR 52.21(b)(14)(i)(c) 
and (b)(14)(ii)(c). Lastly, the 2010 NSR Rule revised the definition of 
``baseline area'' to include a level of significance (SIL) of 0.3 
micrograms per cubic meter ([micro]g/m\3\), annual average, for 
PM2.5. This change is codified in 40 CFR 51.166(b)(15)(i) 
and 40 CFR 52.21(b)(15)(i). On August 1, 2016, EPA approved revisions 
to the Maine SIP that address EPA's 2010 NSR rule. See 81 FR 50353. 
Therefore, with respect to the 2010 NSR Rule and the PSD sub-element of 
section 110(a)(2)(C), we are proposing to approve Maine's 
infrastructure SIP submittals for the 2008 Pb, 2008 ozone, and 2010 
NO2 NAAQS.
    With respect to Elements (C) and (J), EPA interprets the Clean Air 
Act to require each state to make an infrastructure SIP submission for 
a new or revised NAAQS that demonstrates that the air agency has a 
complete PSD permitting program meeting the current requirements for 
all regulated NSR pollutants. The requirements of Element D(i)(II) may 
also be satisfied by demonstrating the air agency has a complete PSD 
permitting program correctly addressing all regulated NSR pollutants. 
Maine has shown that it currently has a PSD program in place that 
covers all regulated NSR pollutants, including GHGs.
    On June 23, 2014, the United States Supreme Court issued a decision 
addressing the application of PSD permitting requirements to GHG 
emissions. Utility Air Regulatory Group v. Environmental Protection 
Agency, 134 S.Ct. 2427. The Supreme Court said that EPA may not treat 
GHGs as an air pollutant for purposes of determining whether a source 
is a major source required to obtain a PSD permit. The Court also said 
that EPA could continue to require that PSD permits, otherwise required 
based on emissions of pollutants other than GHGs, contain limitations 
on GHG emissions based on the application of BACT.
    In accordance with the Supreme Court decision, on April 10, 2015, 
the U.S. Court of Appeals for the District of Columbia Circuit (the DC 
Circuit) issued an amended judgment vacating the regulations that 
implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas 
Tailoring Rule, but not the regulations that implement Step 1 of that 
rule. Step 1 of the Tailoring Rule covers sources that are required to 
obtain a PSD permit based on emissions of pollutants other than GHGs. 
Step 2 applied to sources that emitted only GHGs above the thresholds 
triggering the requirement to obtain a PSD permit. The amended judgment 
preserves, without the need for additional rulemaking by EPA, the 
application of the Best Available Control Technology (BACT) requirement 
to GHG emissions from Step 1 or ``anyway'' sources. With respect to 
Step 2 sources, the DC Circuit's amended judgment vacated the 
regulations at issue in the litigation, including 40 CFR 
51.166(b)(48)(v), ``to the extent they require a stationary source to 
obtain a PSD permit if greenhouse gases are the only pollutant (i) that 
the source emits or has the potential to emit above the applicable 
major source thresholds, or (ii) for which there is a significant 
emission increase from a modification.''
    On August 19, 2015, EPA amended its PSD and title V regulations to 
remove from the Code of Federal Regulations portions of those 
regulations that the DC Circuit specifically identified as vacated. EPA 
intends to further revise the PSD and title V regulations to fully 
implement the Supreme Court and DC Circuit rulings in a separate 
rulemaking. This future rulemaking will include revisions to additional 
definitions in the PSD regulations.
    Some states have begun to revise their existing SIP-approved PSD 
programs in light of these court decisions, and some states may prefer 
not to initiate this process until they have more information about the 
additional planned revisions to EPA's PSD regulations. EPA is not 
expecting states to have revised their PSD programs in anticipation of 
EPA's additional actions to revise its PSD program rules in response to 
the court decisions for purposes of infrastructure SIP submissions. 
Instead, EPA is only evaluating such submissions to assure that the 
state's program addresses GHGs consistent with both the court decision, 
and the revisions to PSD regulations that EPA has completed at this 
time.
    On October 5, 2012 (77 FR 49404), EPA approved revisions to the 
Maine SIP that modified Maine's PSD program to establish appropriate 
emission thresholds for determining which new stationary sources and 
modification projects become subject to Maine's PSD permitting 
requirements for their GHG emissions. Therefore, EPA has determined 
that Maine's SIP is sufficient to satisfy Elements (C), (D)(i)(II), and 
(J) with respect to GHGs. The Supreme Court decision and subsequent DC 
Circuit judgment do not prevent EPA's approval of Maine's 
infrastructure SIP as to the requirements of Elements (C), (as well as 
sub-elements (D)(i)(II), and (J)(iii)).
    For the purposes of today's rulemaking on Maine's infrastructure 
SIPs, EPA reiterates that NSR Reform is not in the scope of these 
actions.

[[Page 12910]]

    In summary, we are proposing to approve Maine's submittals for this 
sub-element with respect to the 2008 Pb, 2008 ozone, and 2010 
NO2 NAAQS.
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, 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. EPA last approved 
revisions to Maine's minor NSR program on August 1, 2016 (81 FR 50353). 
Maine and EPA rely on the existing minor NSR program in 06-096 CMR 
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 2008 Pb, 2008 ozone, and 2010 NO2 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 2008 Pb, 2008 ozone, and 2010 
NO2 NAAQS.

D. Section 110(a)(2)(D)--Interstate Transport

    This section 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, Contribute 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 
below, 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.
Sub-Element 1: Section 110(a)(2)(D)(i)(I)--Contribute to Nonattainment 
(Prong 1) and Interfere With Maintenance of the NAAQS (Prong 2)
    Section 110(a)(2)(D)(i)(I) addresses any emissions activity in one 
state that contributes significantly to nonattainment, or interferes 
with maintenance, of the NAAQS in another state. The EPA sometimes 
refers to these requirements as prong 1 (significant contribution to 
nonattainment) and prong 2 (interference with maintenance).
    With respect to the 2008 Pb NAAQS, the 2011 Memo notes that the 
physical properties of Pb prevent it from experiencing the same travel 
or formation phenomena as, for example, PM2.5 or ozone. 
Specifically, there is a sharp decrease in Pb concentrations as the 
distance from a Pb source increases. Accordingly, although it may be 
possible for a source in a state to emit Pb at a location and in such 
quantities that contribute significantly to nonattainment in, or 
interference with maintenance by, any other state, EPA anticipates that 
this would be a rare situation, e.g., sources emitting large quantities 
of Pb in close proximity to state boundaries. The 2011 Memo suggests 
that the applicable interstate transport requirements of section 
110(a)(2)(D)(i)(I) with respect to Pb can be met through a state's 
assessment as to whether or not emissions from Pb sources located in 
close proximity to its borders have emissions that impact a neighboring 
state such that they contribute significantly to nonattainment or 
interfere with maintenance in that state.
    Maine's infrastructure SIP submission for the 2008 Pb NAAQS states 
that Maine has no Pb sources that exceed, or even approach, 0.5 ton/
year. No single source of Pb, or group of sources, anywhere within the 
state emits enough Pb to cause ambient concentrations to approach the 
Pb NAAQS. Our review of the Pb emissions data from Maine sources, which 
the state has entered into the EPA National Emissions Inventory (NEI) 
database, confirms this, and therefore, EPA agrees with Maine and 
proposes that Maine has met this set of requirements related to section 
110(a)(2)(D)(i)(I) for the 2008 Pb NAAQS.
    Maine's June 7, 2013 infrastructure SIP submission for the 2010 
NO2 NAAQS does not address section 110(a)(2)(D)(i)(I). 
Therefore, EPA is not taking any action with respect to this sub-
element for the NO2 NAAQS for Maine at this time. Maine's 
June 7, 2013 infrastructure SIP submission for the 2008 ozone NAAQS 
likewise does not address section 110(a)(2)(D)(i)(I). However, Maine 
subsequently submitted a SIP revision on October 26, 2015, addressing 
this sub-element and EPA approved this SIP revision on October 13, 2016 
(81 FR 70631).
    Therefore, EPA proposes to approve Maine's submittal for the 2008 
Pb NAAQS for sub-element 1 of section 110(a)(2)(D)(i)(I).
Sub-Element 2: Section 110(a)(2)(D)(i)(II)--PSD (Prong 3)
    One aspect of section 110(a)(2)(D)(i)(II) requires SIPs to include 
provisions prohibiting any source or other type of emissions activity 
in one state from interfering with measures required to be in any other 
state's SIP under Part C of the Act to prevent significant 
deterioration of air quality. One way for a state to meet this 
requirement, specifically with respect to those 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 nonattainment new 
source review (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 requirements of Prong 3, Maine cites to Maine's 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 Pb, NOX, and VOC emissions do not 
contribute significantly to nonattainment or interfere with maintenance 
of those standards. 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 are proposing to approve Maine's 
infrastructure SIPs for the 2008 Pb, 2008 ozone, and 2010 
NO2 NAAQS related to section 110(a)(2)(D)(i)(II) for the 
reasons discussed under Element C.
Sub-Element 3: Section 110(a)(2)(D)(i)(II)--Visibility Protection 
(Prong 4)
    With regard to the applicable requirements for visibility 
protection of section 110(a)(2)(D)(i)(II), states are subject to 
visibility and regional haze program requirements under part C of the 
CAA (which includes sections 169A

[[Page 12911]]

and 169B). The 2009 Memo, the 2011 Memo, and 2013 Memo state that these 
requirements can be satisfied by an approved SIP addressing reasonably 
attributable visibility impairment, if required, or an approved SIP 
addressing regional haze. 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' plans to 
protect visibility. Maine's Regional Haze SIP was approved by EPA on 
April 24, 2012 (77 FR 24385). Accordingly, EPA proposes that Maine has 
met the visibility protection requirements of 110(a)(2)(D)(i)(II) for 
the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.
Sub-Element 4: Section 110(a)(2)(D)(ii)--Interstate Pollution Abatement
    One aspect of section 110(a)(2)(D)(ii) requires each SIP to contain 
adequate provisions requiring compliance with the applicable 
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. A lack of such a 
requirement in state rules would be grounds for disapproval of this 
element.
    EPA-approved regulations require the Maine 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). Such notice ``shall announce availability 
of the application, the Department's preliminary determination in the 
form of a draft order, the degree of increment consumption that is 
expected from the source or modification, as well as the opportunity 
for submission of written public comment.'' See 06-096 CMR Chapter 115, 
Sec.  IX(E)(2). 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 particular NAAQS at issue. Consequently, EPA proposes to 
approve Maine's infrastructure SIP submittals for this sub-element with 
respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.
Sub-Element 5: Section 110(a)(2)(D)(ii)--International Pollution 
Abatement
    One portion of section 110(a)(2)(D)(ii) requires each SIP to 
contain adequate provisions requiring compliance with the applicable 
requirements of section 115 relating to international pollution 
abatement. There are no final findings under section 115 against Maine 
with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. 
Therefore, EPA is proposing that Maine has met the applicable 
infrastructure SIP requirements of section 110(a)(2)(D)(ii) related to 
section 115 of the CAA (international pollution abatement) for the 2008 
Pb, 2008 ozone, and 2010 NO2 NAAQS.

E. Section 110(a)(2)(E)--Adequate Resources

    This section requires each state to provide for adequate personnel, 
funding, and legal authority under state law to carry out its SIP and 
related issues. Additionally, 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 adequate 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.
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 submittals, has documented 
that its air agency has the requisite 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.  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 2008 Pb, 2008 ozone, and 2010 
NO2 NAAQS. Additionally, state law provides the 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. Chapter 8 of the 1972 ME SIP describes the resources and 
manpower estimates for ME DEP. Finally, Maine states, in its June 7, 
2013 submittal for 2008 ozone, that for FY 2012, the Bureau of Air 
Quality had a staff of 59, and a budget of $5.7 million. EPA proposes 
that Maine has met the infrastructure SIP requirements of this portion 
of section 110(a)(2)(E) with respect to the 2008 Pb, 2008 ozone, and 
2010 NO2 NAAQS.
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. That provision 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 Maine 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 at 42, and that the requirement of CAA Sec.  128(a)(1) 
applies to Maine -- that is, 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

[[Page 12912]]

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 income from persons subject to'' air 
permits and enforcement orders. Furthermore, section 341-C is not 
currently in Maine's SIP. By letter dated March 1, 2018, however, DEP 
committed to revise section 341-C to address the CAA Sec.  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 
these infrastructure SIPs. Consequently, EPA proposes to conditionally 
approve Maine's submittals for this requirement of CAA Sec.  128(a)(1).
    With respect to the requirements in Sec.  128(a)(2) (regarding 
potential conflicts of interest), on April 23, 2013, Maine submitted 5 
MRSA Sec.  18 and 38 MRSA Sec.  341-C(7) to EPA and requested that they 
be incorporated into the Maine SIP. Pursuant to 5 MRSA Sec.  18(2), 
``[a]n executive employee commits a civil violation if he personally 
and substantially participates in his official capacity in any 
proceeding in which, to his knowledge, any of the following have a 
direct and substantial financial interest: A. Himself, his spouse or 
his dependent children; B. His partners; C. A person or organization 
with whom he is negotiating or has agreed to an arrangement concerning 
prospective employment; D. An organization in which he has a direct and 
substantial financial interest; or E. Any person with whom the 
executive employee has been associated as a partner or a fellow 
shareholder in a professional service corporation pursuant to Title 13, 
chapter 22-A, during the preceding year.'' Section 18 defines 
``executive employee'' to include, among others, ``members of the state 
boards.'' Id. Sec.  18(1). Moreover, 38 MRSA Sec.  341-C(7) 
specifically provides that the state's conflict of interest provisions 
at 5 MRSA Sec.  18 apply to Board members. Section 18 further provides 
that ``[e]very executive employee shall endeavor to avoid the 
appearance of a conflict of interest by disclosure or by abstention'' 
and that, for purposes of this requirement, the term ```conflict of 
interest' includes receiving remuneration, other than reimbursement for 
reasonable travel expenses, for performing functions that a reasonable 
person would expect to perform as part of that person's official 
responsibility as'' a Board member. Id. Sec.  18(7). EPA proposes that 
5 MRSA Sec.  18 and 38 MRSA Sec.  341-C(7) satisfy the conflict of 
interest requirements of CAA Sec.  128(a)(2) with respect to members of 
a board that approves permits or enforcement orders and proposes to 
incorporate them into the Maine SIP.
    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.'' (emphasis added). 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 potential conflict of interest 
requirements of CAA Sec.  128(a)(2) to be applicable in Maine to both 
Board members and the DEP Commissioner. Pursuant to 38 MRSA Sec.  341-
A(3)(D), however, the Commissioner of DEP ``is subject to the conflict-
of-interest provisions of'' 5 MRSA Sec.  18, thus satisfying this 
requirement. Because Maine has not yet submitted 38 MRSA Sec.  341-
A(3)(D) for inclusion in the SIP, but by letter dated March 1, 2018, 
has committed to doing so within one year of EPA's final action on 
Maine's infrastructure SIP submissions, EPA proposes to conditionally 
approve Maine's submissions for the conflict of interest requirement 
with respect to the DEP Commissioner.

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 established pursuant to this chapter. Lastly, the reports 
shall be available at reasonable times for public inspection.
    Maine's infrastructure submittals reference several existing state 
regulations previously approved by EPA that require sources to monitor 
emissions and submit reports. The first is 06-096 CMR Chapter 117, 
``Source Surveillance.'' This regulation specifies which air emission 
sources are required to operate continuous emission monitoring systems 
(CEMS) and details the performance specifications, quality assurance 
requirements and procedures for such systems, and subsequent record 
keeping and reporting requirements. Maine also references EPA-approved 
06-096 CMR Chapter 137, ``Emission Statements,'' which requires sources 
to monitor and report annually to DEP emissions of criteria pollutants 
and other emissions-related information under certain circumstances. 
EPA most recently approved Chapter 137 into the SIP on May 1, 2017. See 
82 FR 20257.
    In addition, Maine refers to its regulations implementing its 
operating permit program pursuant to 40 CFR part 70: 06-096 CMR Chapter 
140, ``Part 70 Air Emission License Regulations.'' This regulation, 
although not in the SIP, identifies the sources of air emissions that 
require a Part 70 air emission license and incorporates the 
requirements of Title IV and Title V of the Clean Air Act, as amended, 
42 U.S.C. 7401, et seq.; and 38 MRSA Sec. Sec.  344 and 590. This 
regulation contains compliance assurance requirements regarding 
monitoring and reporting for licensed sources requiring a Part 70 air 
emission license. The regulation was approved by EPA on October 18, 
2001

[[Page 12913]]

(66 FR 52874). Finally, Maine references 06-096 CMR Chapter 115, 
``Major and Minor Source Air Emission License Regulations.'' This 
regulation contains compliance assurance requirements for licensed 
sources and stipulates that licenses shall include the following 
compliance assurance elements:(a) A description of all required 
monitoring and analysis procedures or test methods required under the 
requirements applicable to the source;(b) A description of all 
recordkeeping requirements; and (c) A description of all reporting 
requirements. While Chapter 140 and the referenced provisions of 
Chapter 115 are not formally approved into Maine's SIP, they are legal 
mechanisms the state can use to assure the enforcement of the 
monitoring requirements approved in the SIP.
    Regarding the section 110(a)(2)(F) requirements that the SIP 
provide for the correlation and public availability of emission 
reports, Maine's emission statement rule, Chapter 137, requires 
facilities to report emissions of air pollutants on an annual basis. 
The 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. See www.epa.gov/air-emissions-inventories/national-emissions-inventory-nei. 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.
    Furthermore, pursuant to 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). In its 
August 21, 2012, submittal, DEP certified that, ``[e]xcept as 
specifically exempted by the Maine statute (1 MRSA Chapter 13 Public 
Records and Proceedings), Maine makes all records, reports or 
information obtained by the MEDEP or referred to at public hearings 
available to the public.'' Maine DEP further certified therein that the 
reports required under 117 and 137 are ``available to the public . . . 
pursuant to Maine law.'' 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 DEP's EPA-approved regulations, 
``[i]nformation concerning the nature and extent of the 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, Maine further certified that 
Maine's Freedom of Access law does not include any exceptions that 
apply to stationary source emissions. For these reasons, we propose to 
find that Maine satisfies the requirement that emissions statements be 
available at reasonable times for public inspection.
    Finally, in the March 1, 2018, letter, 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. See 
also 06-096 CMR Chapter 140, Sec.  3(E)(7)(a)(v) (``Notwithstanding any 
other provision in the State Implementation Plan approved by the EPA or 
Section 114(a) of the CAA, any credible evidence may be used for the 
purpose of establishing whether a person has violated or is in 
violation of any statute, regulation, or Part 70 license 
requirement.''). For the above reasons, EPA is proposing to approve 
Maine's submittals for this requirement of section 110(a)(2)(F) for the 
2008 ozone, 2008 Pb, and 2010 NO2 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 Maine's submittals and a March 1, 2018 DEP 
letter provides for authority comparable to that given the 
Administrator in CAA section 303, as explained below. First, 38 MRSA 
Sec.  347-A, ``Emergency Orders,'' provides that ``[w]henever it 
appears to the commissioner, after investigation, that there is a 
violation of the laws or regulations [DEP] administers or of the terms 
or conditions of any of [DEP's] orders that is creating or is likely to 
create a substantial and immediate danger to public health or safety or 
to the environment, the commissioner may order the person or persons 
causing or contributing to the hazard to immediately take such actions 
as are necessary to reduce or alleviate the danger.'' See 38 MRSA Sec.  
347-A(3). Section 347-A further authorizes the DEP Commissioner to 
initiate an enforcement action in state court in the event of a 
violation of such emergency order issued by the Commissioner. Id. Sec.  
347-A(1)(A)(4). Similarly, 38 MRSA Sec.  348, ``Judicial Enforcement,'' 
authorizes DEP to institute injunction proceedings ``[i]n the event of 
a violation of any provision of the laws administered by [DEP] or of 
any order, regulation, license, permit, approval, administrative 
consent agreement or decision of the board or commissioner.'' Id. Sec.  
348(1). Section 348 also authorizes DEP to seek a court order to a 
restrain a source if it ``finds that the discharge, emission or deposit 
of any materials into any waters, air or land of th[e] State 
constitutes a substantial and immediate danger to the health, safety or 
general welfare of any person, persons or property.'' Id. Sec.  348(3). 
Thus, these provisions authorize DEP to issue an administrative order 
or 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, if there 
is also a violation of a law, regulation, order, or permit administered 
or issued by DEP, as the case may be.
    Second, by letter dated March 1, 2018, Maine also cites to 38 MRSA 
Sec.  591, ``Prohibitions,'' as contributing to its authority. Section 
591 provides that ``[n]o person may discharge air contaminants into 
ambient air within a region in such manner as to violate ambient air 
quality standards established under this chapter or emission standards 
established pursuant to section 585, 585-B or 585-K.'' In those cases 
where emissions of NO2, Pb,

[[Page 12914]]

ozone, or ozone precursors may be causing or contributing to an 
``imminent and substantial endangerment to public health or welfare, or 
the environment,'' a violation of Sec.  591 would also occur, since 
Maine law provides that ambient air quality standards are designed to 
prevent ``air pollution,'' id. Sec.  584, which state law expressly 
defines as ``the presence in the outdoor atmosphere of one or more air 
contaminants in sufficient quantities and of such characteristics and 
duration as to be injurious to human, plant or animal life or to 
property, or which unreasonably interfere with the enjoyment of life 
and property,'' id. Sec.  582(3) (emphasis added). In its March 1, 2018 
letter, Maine further explains that sections 347-A and 591 ``together 
authorize the Commissioner to issue an emergency order upon finding an 
apparent violation of DEP laws or regulations to address emissions of 
criteria pollutants, air contaminants governed by standards promulgated 
under section 585, and hazardous air pollutants governed by standards 
promulgated under section 585-B.''
    Third, in the unlikely event that air emissions are creating a 
substantial or immediate threat to the public health, safety or to the 
environment without violating any DEP law, regulation, order, or 
permit, emergency authority to issue an order to restrain a source may 
also be exercised pursuant to 37-B MRSA Sec.  742, ``Emergency 
Proclamation.'' Maine explains that the DEP Commissioner can notify the 
Governor of an imminent ``disaster,'' and the Governor can then 
exercise authority to ``declare a state of emergency in the State or 
any section of the State.'' See 37-B MRSA Sec.  742(1)(A). State law 
defines ``disaster'' in this context to mean ``the occurrence or 
imminent threat of widespread or severe damage, injury or loss of life 
or property resulting from any natural or man-made cause, including, 
but not limited to . . . air contamination.'' Id. Sec.  703(2). Upon 
the declaration of a state of emergency, the Governor may, among other 
things, ``[o]rder the termination, temporary or permanent, of any 
process, operation, machine or device which may be causing or is 
understood to be the cause of the state of emergency,'' id. Sec.  
742(1)(C)(11), or ``[t]ake whatever action is necessary to abate, clean 
up or mitigate whatever danger may exist within the affected area,'' 
id. Sec.  742(1)(C)(12). Thus, even if there may otherwise be no 
violation of a DEP-administered or -issued law, regulation, order, or 
permit, state authorities exist to restrain the source.
    Finally, Maine's submittals cite 06-096 CMR Chapter 109, 
``Emergency Episode Regulations,'' which sets forth various emission 
reduction plans intended to prevent air pollution from reaching levels 
that would cause imminent and substantial harm and recognizes the 
Commissioner's authority to issue additional emergency orders pursuant 
to 38 MRSA Sec.  347-A, as necessary to the health of persons, by 
restricting emissions during periods of air pollution emergencies. For 
these reasons, we propose to find that Maine's submittals and certain 
state statutes and regulations provide for authority comparable to that 
provided to the Administrator in CAA Sec.  303.
    Section 110(a)(2)(G) also requires that, for any NAAQS, Maine 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). A contingency plan is not required if the entire state 
is classified as Priority III for a particular pollutant. Id. All AQCRs 
in Maine are classified as Priority III areas for NO2 and 
ozone, pursuant to 40 CFR 52.1021. Consequently, as relevant to this 
proposed rulemaking action, Maine's SIP does not need to contain an 
emergency contingency plan meeting the specific requirements of 51.152 
with respect to NO2 and ozone. Moreover, we note that Pb is 
not explicitly included in the contingency plan requirements of 40 CFR 
subpart H. In any event, as discussed earlier in this document with 
respect to Element D(i)(I), according to EPA's 2014 NEI, there are no 
Pb sources within Maine that exceed, or even approach, EPA's reporting 
threshold of 0.5 tons per year. Although not expected, if Pb conditions 
were to change, Maine DEP does have general authority, as noted 
previously, to order a source to immediately take such actions as are 
necessary to reduce or alleviate a danger to public health or safety or 
to the environment.
    EPA proposes that Maine has met the applicable infrastructure SIP 
requirements for section 110(a)(2)(G) with respect to the 2008 Pb, 2008 
ozone, and 2010 NO2 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 account of changes in the 
NAAQS or availability of improved methods for attaining the NAAQS and 
whenever the EPA finds that the SIP is substantially inadequate. To 
address this requirement, Maine's infrastructure submittals reference 
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 Maine 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, 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 statutes give Maine 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 the EPA finds that the SIP is substantially inadequate.
    EPA proposes that Maine has met the infrastructure SIP requirements 
of CAA section 110(a)(2)(H) with respect to the 2008 Pb, 2008 ozone, 
and 2010 NO2 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 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 submissions from Maine with respect to the 
requirements of CAA section 110(a)(2)(J) are described below.

[[Page 12915]]

Sub-Element 1: Consultation With Government Officials
    States must provide a process for consultation with local 
governments and Federal Land Managers (FLMs) carrying out NAAQS 
implementation requirements.
    Pursuant to state law, Maine DEP is authorized to, among other 
things, ``educate the public on natural resource use, requirements and 
issues.'' See 38 MRSA Sec.  341-A(1). State law further provides that 
one of the purposes of the BEP is ``to provide for credible, fair and 
responsible public participation in department decisions,'' id. Sec.  
341-B, and authorizes it to ``cooperate with other state or federal 
departments or agencies to carry out'' its responsibilities, id. Sec.  
341-F(6). Furthermore, pursuant to Maine's EPA-approved regulations, 
the DEP is required to provide notice to relevant municipal officials 
and FLMs, among others, of DEP's preparation of a draft permit for a 
new or modified source. See 06-096 CMR Chapter 115, Sec.  IX(E)(3); 
approved March 23, 1993 (58 FR 15422). In addition, with respect to 
area reclassifications to Class I, II, or III for PSD purposes, the DEP 
is required to offer an opportunity for a public hearing and to consult 
with appropriate FLMs. See 38 MRSA Sec.  583-B; and also 06-096 CMR 
Chapter 114, Sec.  1(E). Maine's Transportation Conformity rule at 06-
096 CMR Chapter 139 also provides procedures for interagency 
consultation, resolution of conflicts, and public consultation and 
notification. Finally, the Maine Administrative Procedures Act (Maine 
Revised Statutes Title 5, Chapter 375, subchapter 2) requires 
notification and provision of comment opportunities to all parties 
affected by proposed regulations. All SIP revisions undergo public 
notice and opportunity for hearing, which allows for comment by the 
public, including local governments.
    EPA proposes that Maine has met the infrastructure SIP requirements 
of this portion of section 110(a)(2)(J) with respect to the 2008 Pb, 
2008 ozone, and 2010 NO2 NAAQS.
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 notice, state law directs Maine 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 DEP ``educate the public on natural resource 
use, requirements and issues. Id. Sec.  341-A(1). To that end, the ME 
DEP makes real-time and historical air quality information available on 
its website. The agency also provides extended range air quality 
forecasts, which give the public advanced notice of air quality events. 
This advance notice 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. DEP states in its submittals that, in the event that 
a Pb monitor is established in Maine in the future, the Department will 
also put the data collected from such a monitor on its website. 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 has met the infrastructure SIP requirements 
of this portion of section 110(a)(2)(J) with respect to the 2008 Pb, 
2008 ozone, and 2010 NO2 NAAQS.
Sub-Element 3: PSD
    States must meet applicable requirements of section 110(a)(2)(C) 
related to PSD. Maine's PSD program in the context of infrastructure 
SIPs has already been discussed in the paragraphs addressing 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 are proposing to approve the PSD sub-element of 
section 110(a)(2)(J) for the 2008 Pb, 2008 ozone, and 2010 
NO2 NAAQS, consistent with the actions we are proposing for 
sections 110(a)(2)(C) and 110(a)(2)(D)(i)(II).
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 Memo, 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 
SIPs for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

K. Section 110(a)(2)(K)--Air Quality Modeling/Data

    To satisfy Element K, the state air agency must demonstrate that it 
has the authority to perform air quality modeling to predict effects on 
air quality of emissions of any NAAQS pollutant and submission of such 
data to EPA upon request. Maine state law implicitly authorizes DEP to 
perform air quality monitoring 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 Chapter 115, which requires an applicant to 
provide a demonstration, that may include air-quality modeling, that 
shows its emissions will not violate the NAAQS. We note that EPA-
approved Chapter 115 requires DEP to notify EPA of any PSD application, 
see Sec.  IX(E), and that EPA-approved 06-096 CMR Chapter 1 requires 
DEP to make ``[a]ll applications or other forms and documents submitted 
in support of any license application'' publicly available. See Sec.  
6(A)(1), which naturally includes EPA. In its August 21, 2012 
submittal, DEP further states that it performs modeling, provides 
modeling data to EPA upon request, and will continue to do both. Maine 
also cites to 06-096 Chapter 116, ``Prohibited Dispersion Techniques,'' 
which includes regulations applicable to the State's air quality 
modeling consistent with federal requirements concerning stack height 
and other dispersion techniques, such as merging of plumes. These 
regulations also define the area surrounding the source where ambient 
air quality standards do not have to be met. Finally, Maine cites 06-
096 CMR Chapter 140, which contains air quality modeling requirements 
for sources subject to 40 CFR part 70 that are analogous to those in 
Chapter 115. Maine also collaborates with the Ozone Transport 
Commission (OTC) and the Mid-Atlantic Regional Air Management 
Association and EPA in order to perform large-scale urban air shed 
modeling for ozone if necessary.

[[Page 12916]]

    EPA proposes that Maine has met the infrastructure SIP requirements 
of section 110(a)(2)(K) with respect to the 2008 Pb, 2008 ozone, and 
2010 NO2 NAAQS.

L. Section 110(a)(2)(L)--Permitting Fees

    This section requires SIPs to mandate that each major stationary 
source pay permitting fees to cover the 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 (66 FR 52874). To 
gain this approval, Maine demonstrated the ability to collect 
sufficient fees to run the program. See 61 FR 49289, 49291 (Sept. 19, 
1996). Maine also notes in its submittals that the costs of all CAA 
permitting, implementation, and enforcement for new or modified sources 
are covered by Title V fees and that 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), 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 that Maine has met the infrastructure SIP requirements 
of section 110(a)(2)(L) for the 2008 Pb, 2008 ozone, and 2010 
NO2 NAAQS.

M. Section 110(a)(2)(M)--Consultation/Participation by Affected Local 
Entities

    To satisfy Element M, states must consult with, and allow 
participation from, local political subdivisions affected by the SIP. 
Maine's infrastructure submittals reference the Maine Administrative 
Procedure Act, 5 MRSA Chapter 375, and explain 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 that Maine has met the infrastructure SIP requirements 
of section 110(a)(2)(M) with respect to the 2008 Pb, 2008 ozone, and 
2010 NO2 NAAQS.

N. Maine Statute and Executive Order Submitted for Incorporation Into 
the SIP

    As noted above, in the discussion of element E, on April 23, 2013, 
Maine submitted, and EPA is proposing to approve 38 MRSA Sec.  341-
C(7), ``Conflict of Interest,'' and 5 MRSA Sec.  18, ``Disqualification 
of executive employees from participation in certain matters,'' into 
the SIP.

V. What action is EPA taking?

    EPA is proposing to approve the infrastructure SIPs submitted by 
Maine for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. The 
state submitted its infrastructure SIP for each NAAQS on the following 
dates: 2008 Pb--August 21 2012; 2008 ozone--June 7, 2013; and 2010 
NO2--June 7, 2013. Also, we are proposing to approve into 
the SIP, Maine's conflict of interest provisions found in 38 MRSA 
Section 341-C(7) and 5 MRSA Section 18, which DEP submitted as a SIP 
revision on April 23, 2013. Specifically, EPA's proposed actions 
regarding each infrastructure SIP requirement are contained in Table 1 
below.

                        Table 1--Proposed Action on Maine's Infrastructure SIP Submittals
----------------------------------------------------------------------------------------------------------------
                           Element                                 2008 Pb         2008 Ozone        2010 NO2
----------------------------------------------------------------------------------------------------------------
(A): Emission limits and other control measures..............               A                A                A
(B): Ambient air quality monitoring and data system..........               A                A                A
(C)1: Enforcement of SIP measures............................               A                A                A
(C)2: PSD program for major sources and major modifications..               A                A                A
(C)3: preconstruction permitting for minor sources and minor                A                A                A
 modifications...............................................
(D)1: Contribute to nonattainment/interfere with maintenance                A               PA               NS
 of NAAQS....................................................
(D)2: PSD....................................................               A                A                A
(D)3: Visibility Protection..................................               A                A                A
(D)4: Interstate Pollution Abatement.........................               A                A                A
(D)5: International Pollution Abatement......................               A                A                A
(E): Adequate resources......................................               A                A                A
(E): State boards............................................                CA               CA               CA
(E): Necessary assurances with respect to local agencies.....              NA               NA               NA
(F): Stationary source monitoring system.....................               A                A                A
(G): Emergency power.........................................               A                A                A
(H): Future SIP revisions....................................               A                A                A
(I): Nonattainment area plan or plan revisions under part D..              NG               NG               NG
(J)1: Consultation with government officials.................               A                A                A
(J)2: Public notification....................................               A                A                A
(J)3: PSD....................................................               A                A                A
(J)4: Visibility protection..................................              NG               NG               NG
(K): Air quality modeling and data...........................               A                A                A
(L): Permitting fees.........................................               A                A                A
(M): Consultation and participation by affected local                       A                A                A
 entities....................................................
----------------------------------------------------------------------------------------------------------------

    In the above table, the key is as follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
A..............................  Approve.
CA.............................  Conditionally Approve.
NA.............................  Not applicable.
NG.............................  Not germane to infrastructure SIPs.
NS.............................  No Submittal.
PA.............................  Previously approved (see 81 FR 70631,
                                  Oct. 13, 2016).
------------------------------------------------------------------------


[[Page 12917]]

    As noted in Table 1, we are proposing to conditionally approve 
portions of Maine's infrastructure SIP submittals pertaining to the 
state's Board for the 2008 Pb, 2008 ozone, and 2010 NO2 
NAAQS. 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 deficiencies 
mentioned above under element E. If the State fails to do so, this 
action will become a disapproval 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 new submittal. If EPA disapproves 
the new submittal, the conditionally approved infrastructure SIP 
elements for all affected pollutants will be disapproved. In addition, 
a final disapproval triggers the Federal Implementation Plan 
requirement under section 110(c). If EPA approves the new submittal, 
the State Board rule and relevant infrastructure SIP elements will be 
fully approved and replace the conditionally approved program in the 
SIP.
    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 written 
comments to the EPA New England Regional Office listed in the ADDRESSES 
section of this Federal Register, or by submitting comments 
electronically, by mail, or through hand delivery/courier following the 
directions in the ADDRESSES section of this Federal Register.

VI. Incorporation by Reference

    In this rule, EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference the two Maine statutes listed in Section V above. EPA has 
made, and will continue to make, these documents generally available 
electronically through https://www.regulations.gov and/or in hard copy 
at the appropriate EPA office (see the ADDRESSES section of this 
preamble for more information).

VII. Statutory and Executive Order Reviews

    Under the CAA, 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);
     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 (Public Law 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: March 15, 2018.
Alexandra Dapolito Dunn,
Regional Administrator, EPA Region 1.
[FR Doc. 2018-06006 Filed 3-23-18; 8:45 am]
BILLING CODE 6560-50-P


