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Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Proposed Rules
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NAAQS. Section 110a2Eiii, however, does not apply 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
submittal, has documented that its air agency has authority and resources to carry out its SIP obligations. Maine cites 38 MRSA 341A, Department of Environmental Protection, 38 MRSA
341D, Board responsibilities and duties, 38 MRSA 342, Commissioner, duties, and 38 MRSA
581, Declaration of findings and intent. These statutes provide the Maine DEP with the legal authority to enforce air pollution control requirements and carry out SIP
obligations with respect to the 2015
ozone NAAQS. Additionally, state law provides the 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.
Maine states in its February 14, 2020, submittal for 2015 ozone NAAQS that the Bureau of Air Quality had a staff of 53 and a budget of $4.8 million for FY
2016. ME DEP staff and operations are funded by the State and through EPA
grants, including annual funding through CAA sections 103 and 105 to assist with the costs of implementing programs for the prevention and control of air pollution or implementation of national primary and secondary ambient air quality standards. Maine also has an EPA-approved fee program under CAA
title V which is used to support title V
program elements such as permitting, monitoring, testing, inspections, and enforcement. Furthermore, ME DEPs budget has been consistent over the past number of years and over these years Maine has been able to meet its statutory commitments under the Act.10
Based upon Maines submittal and this additional information, EPA proposes that Maine meets the infrastructure SIP
requirements of this sub-element of 10 https www.maine.gov/budget/sites/
maine.gov.budget/files/inline-files/Annual%20
Report%202018-2019%20NEW.PDF.

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section 110a2E for the 2015 ozone NAAQS.
Sub-Element 2: State Board Requirements Under Section 128 of the CAA
Section 110a2Eii requires each SIP to contain provisions that comply with the state board requirements of section 128a 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. Section 128
further provides that a state may adopt more stringent conflicts of interest requirements and requires EPA to approve any such requirements submitted as part of a SIP.
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
128a1 applies to Mainethat 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 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
341C1. 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. 341B.
State law further provides that Board
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members must be chosen to represent the broadest possible interest and experience that can be brought to bear on the administration and implementation of Maines environmental laws and that at 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. 341C2. As EPA has also explained in previous notices of proposed rulemakings related to Maine infrastructure SIP submittals, section 341C fulfills the requirement that at least a majority of Board members represent the public interest, but it does 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. See, e.g., 83 FR 66184 at 66192
December 26, 2018. Nor is section 341C2 currently in Maines SIP. Id. In those previous actions, however, Maine DEP committed to revise section 341C
to address the 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 the necessary provisions to EPA
for inclusion in the SIP. Id.
On September 4, 2019, Maine did so, submitting revisions to 38 MRSA
sections 341C2 and 341C8 for inclusion in the SIP.11
Maine revised section 341C2 by adding one word, indicating that Board members must be chosen to represent the broadest possible public interest and experience that can be brought to bear on the administration and implementation of Maines environmental laws. emphasis added.
EPA concludes that the addition of the word public only strengthens the conclusion that Maine fulfills the requirement that at least a majority of Board members represent the public interest. As for section 341C8, it now provides that:
A board member may not participate in the review of or act on any permitting decision or enforcement order under the federal Clean Air Act . . . if the board member receives or derives a significant portion of that board members income from persons subject to permits or enforcement orders under the federal Clean Air Act. Board members whose participation is restricted under this paragraph shall recuse themselves from all 11 By email dated October 20, 2020, Maine DEP
clarified that it was requesting to add 38 MRSA
341C8 to the SIP, except subparagraph A, which addresses Board member participation in decisions regarding permits issued under the Clean Water Act. The October 20, 2020, email is included in the docket for this action.

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