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Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Proposed Rules
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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..
EPA proposes that Maine meets the infrastructure SIP requirements of section 110a2F for the 2015 ozone NAAQS.
G. Section 110a2GEmergency Powers This section requires that a plan provide for state authority analogous 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 Maines submittal provides for authority comparable to that given the Administrator in CAA section 303, as explained below. First, 38 MRSA
347A, Emergency Orders, provides that whenever 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 DEPs 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 347A3.
Section 347A 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.
347A1A4. Similarly, 38 MRSA
348, Judicial Enforcement, authorizes DEP to institute injunction proceedings in 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. 3481. Section 348 also authorizes DEP to seek a court order to a restrain a source if it finds that the discharge,
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emission or deposit of any materials into any waters, air or land of the State constitutes a substantial and immediate danger to the health, safety or general welfare of any person, persons or property. Id. 3483. 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.
Maine also cites 38 MRSA 591, Prohibitions, as contributing to its authority. Section 591 provides that no 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, 585B or 585K. In those cases where emissions of 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 591 would also occur, since Maine law provides that ambient air quality standards are designed to prevent air pollution, id. 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. 5823 emphasis added.
In its submittal, Maine further explains that sections 347A 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 585B.
Maine explains that, in the unlikely event that air emissions create a substantial or immediate threat to the public health, safety, or to the environment without violating any DEP
law or regulation, the DEP
commissioner can notify the Governor of an imminent threat, and the Governor can then exercise emergency authority under 37B MRSA 742 to issue an order to terminate the cause of the emergency. In the declaration of a state
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of emergency, the Governor may, among other things, order 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.
7421C11.
Finally, Maines submittal cites 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 Commissioners authority to issue additional emergency orders pursuant to 38 MRSA 347A, as necessary to the health of persons, by restricting emissions during periods of air pollution emergencies. For these reasons, we propose to find that Maines submittal and certain state statutes and regulations provide for authority comparable to that provided to the Administrator in CAA 303.
Section 110a2G 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 51.152c. 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, Maines SIP does not need to contain an emergency contingency plan meeting the specific requirements of 51.152 with respect to NO2 and ozone.
Maine does, however, as a matter of practice, post on the internet daily forecasted ozone levels through the EPA
AIRNOW and EPA ENVIROFLASH
systems. Information regarding these two systems is available on EPAs website at www.airnow.gov. Notices are sent out to ENVIROFLASH participants when levels are forecast to exceed the current 8-hour ozone standard. In addition, when levels are expected to exceed the ozone standard in Maine, the media are alerted via a press release, and the National Weather Service NWS is alerted to issue an Air Quality Advisory through the normal NWS
weather alert system. These actions are similar to the notification and communication requirements of 40 CFR
51.152.
EPA proposes that Maine meets the applicable infrastructure SIP
requirements for section 110a2G, including contingency-plan requirements, for the 2015 ozone NAAQS.

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