Air programs; approval and promulgation; State plans for designated facilities and pollutants: Maine,

[Federal Register: March 15, 2005 (Volume 70, Number 49)]

[Rules and Regulations]

[Page 12591-12592]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr15mr05-5]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[R01-OAR-2004-ME-0002; A-1-FRL-7884-7]

Approval and Promulgation of Air Quality Implementation Plans; Maine; Control of Total Reduced Sulfur From Kraft Pulp Mills: Withdrawal of Direct Final Rule; and Correction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Withdrawal of direct final rule, correcting amendment.

SUMMARY: This document withdraws the direct final rule published in the Federal Register on March 1, 2005. 70 FR 9872. In that rule, we approved a revision to the State of Maine's plan for controlling total reduced sulfur (``TRS'') from kraft pulp mills under section 111(d) of the Clean Air Act (``CAA'') (the ``111(d) plan''). That revision extended the compliance date for brown stock washers to April 17, 2007. EPA stated in the direct final rule that if it received adverse comment by March 31, 2005, the rule would be withdrawn and not take effect. We are withdrawing the direct final rule today because we received an adverse comment concerning our approval to extend the

[[Page 12592]]

compliance date for brown stock washers. EPA will address this comment and any others received concerning Maine's revision to its 111(d) plan in a subsequent final action based upon the proposed rule that was issued simultaneously with the direct final rule. 70 FR 9901. As explained in the direct final rule and the proposed rule, EPA will not institute a second comment period on this action. 70 FR 9874; 70 FR 9901. In addition, this document corrects a statement in the preamble of the direct final rule. In that preamble, the Agency inaccurately summarized the provisions of CAA section 111(d). This mistake has no bearing on the substance of EPA's proposed approval of Maine's revision to its 111(d) plan.

DATES: The direct final rule is withdrawn as of March 15, 2005. EPA will continue to take comments on the proposed rule until March 31, 2005. Please see EPA's direct final rule published on March 1, 2005 (70 FR 9872) for instructions for submitting comments.

FOR FURTHER INFORMATION CONTACT: Ian D. Cohen, Air Permits, Toxics, and Indoor Air Programs Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100 (CAP), Boston, MA 02114-2023, cohen.ian@epa.gov.

SUPPLEMENTARY INFORMATION: The statement in the preamble to the direct final rule that we are correcting today concerns the summary of section 111(d) that we provided in the statutory background section of the notice. Specifically, we stated:

Section 111(d) of the CAA allows EPA to approve state plans to regulate emissions from existing sources of ``designated pollutants,'' i.e., pollutants not listed as criteria pollutants under CAA section 108(a) nor as hazardous air pollutants (``HAPs'') under section 112(b)(1), but to which a standard of performance for new sources applies under section 111.''

70 FR 9872, 9873 (column 3). This summary of CAA section 111(d)(1) is inaccurate and incomplete. As an initial matter, we intended for the above statement to summarize one of our regulations. The above statement incorrectly summarizes that regulation because the regulation refers to section 112(b)(1)(A) of the Act, not section 112(b)(1). Upon further examination of the regulation, we recognize that we erred in relying on the regulation because that regulation interprets section 111(d) of the 1970 CAA, not the 1990 Act, which represents existing law. See 40 C.F.R. 60.21(a) (promulgated in November 1975). This is evidenced, in part, by the fact that the CAA, as amended in 1990, does not include a ``section 112(b)(1)(A)'' to which the regulation refers. The above-quoted statement therefore does not take into account or, in any way, address the 1990 CAA, in which Congress amended section 111(d).\1\

\1\ A commenter on the direct final rule noted that the above- quoted statement does not take into account section 111(d), as amended in 1990.

As explained in our January 30, 2004, proposed rule concerning emissions of hazardous air pollutants from Electric Utility Units, we believe that we can regulate hazardous air pollutants from certain source categories under CAA section 111(d). 69 FR 4652, 4684-86 (Jan. 30, 2004). Nevertheless, the question of whether we can regulate hazardous air pollutants from particular source categories under CAA section 111(d), as amended in 1990, is not material to our approval of the State of Maine's section 111(d) plan revision, since that revision concerns TRS, which is not a hazardous air pollutant. Thus, we revise the statutory background in the preamble of the direct final rule approving the TRS section 111(d) plan, to read as follows:

Section 111(d) of the CAA provides that where EPA has issued section 111(b) standards for new sources of a listed source category for a particular pollutant, EPA shall establish regulations for existing sources in that category that emit the pollutant at issue. The regulations that EPA establishes are to set forth a procedure similar to that provided for under CAA section 110, where each State submits a plan to the Administrator for review and approval. Section 111(d) does contain certain exceptions for regulation under that provision. Those exceptions are not relevant here.

Specifically, the above corrected statement replaces the first sentence that appears under the heading ``Background and Purpose'' in the direct final rule, see 70 FR 9873, column 3. We are correcting this statement in the direct final rule because the rationale underlying EPA's approval of Maine's revision to its 111(d) plan is set forth only in the direct final rule, not in the proposed rule that was issue on March 1, 2005. See 70 FR 9901 (``For additional information, see the direct final rule''). Because interested parties must prepare any comments on the proposed rule by reference to the content of the direct final rule that was published on March 1, 2005, we take action today to correct the statutory background statement included in that notice.

Furthermore, EPA approved Maine's TRS section 111(d) plan in 1990, and approved revisions to that plan in 1994 and 2003. The issue addressed in the direct final rule published on March 1, 2005, does not concern whether EPA has authority to regulate TRS from kraft pulp mill plants under section 111(d), but rather, whether EPA reasonably approved Maine's proposed extension of the compliance date for certain facilities. Accordingly, the above revised statement accurately summarizes the statutory background that is relevant to the proposed extension of the compliance date for brown stock washers. See 70 FR 9872, 9874 (March 1, 2005) for a summary and explanation of the proposed compliance date extension.

2. Statutory and Executive Order Reviews

This action merely corrects a statement in the preamble of the direct final rule published on March 1, 2005, and nothing in this action changes the analysis found in section V, ``Statutory and Executive Order Reviews,'' of the direct final rule. Please, refer to that direct final rule (70 FR 9874, 9875) for information regarding applicable Statutory and Executive Order Reviews.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This correction to rule document 05-3908 is not a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 62

Environmental protection, Total reduced sulfur.

Dated: March 9, 2005. Ira W. Leighton, Acting Regional Administrator, EPA New England.

[FR Doc. 05-5133 Filed 3-14-05; 8:45 am]

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