2018-11200. Air Plan Approval; Maine; Infrastructure Requirement for the 2010 Nitrogen Dioxide National Ambient Air Quality Standard

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) is proposing to approve a February 21, 2018, State Implementation Plan (SIP) revision submitted by the State of Maine. This revision addresses the interstate transport requirements of the Clean Air Act (CAA) with respect to the 2010 primary nitrogen dioxide (NO₂) National Ambient Air Quality Standard (NAAQS). This action proposes to approve Maine's demonstration that the State is meeting its obligations regarding the interstate transport of NO₂ emissions into other states. This action is being taken under the CAA.

DATES:

Written comments must be received on or before June 25, 2018.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R01-OAR-2018-0269 at www.regulations.gov,, or via email to [e-mail]. 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 at www.regulations.gov or at the U.S. Environmental Protection Agency, EPA New England Regional Office, Office of Ecosystem Protection, Air Quality Planning Unit, 5 Post Office Square—Suite 100, Boston, MA. EPA requests that if at all possible, you contact the contact listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding legal holidays.

FOR FURTHER INFORMATION CONTACT:

Patrick Bird, Office of Ecosystem Protection, 5 Post Office Square—Suite 100 (Mail Code OEP 05-2), Boston, MA 01209-3912, tel. [phone], email [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

Table of Contents

I. Background

II. Section 110(a)(2)(D)(i)(I)—Interstate Transport

III. State Submittal

IV. EPA's Evaluation

V. Proposed Action

VI. Statutory and Executive Order Reviews

I. Background

On February 9, 2010, EPA promulgated a new 1-hour primary NAAQS for NO₂ at a level of 100 parts per billion (ppb), based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations. See 75 FR 6474. This NAAQS is designed to protect against exposure to the entire group of nitrogen oxides (NO_X). NO₂ is the component of greatest concern and is used as the indicator for the larger group of NO_X Emissions that lead to the formation of NO₂ generally also lead to the formation of other NO_X Therefore, control measures that reduce NO₂ can generally be expected to reduce population exposures to all gaseous NO_X which may have the co-benefit of reducing the formation of ozone and fine particles, both of which pose significant public health threats.

Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS, or within such shorter period as EPA may prescribe.^[1] These SIPs, which EPA has historically referred to as “infrastructure SIPs,” are to provide for the “implementation, maintenance, and enforcement” of such NAAQS, and the 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. A detailed history, interpretation, and rationale of these SIPs and their requirements can be found in, among other documents, EPA's May 13, 2014 proposed rulemaking titled, “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. As noted above, section 110(a) of the CAA imposes an obligation upon states to submit to EPA a SIP submission for a new or revised NAAQS. The content of individual state submissions may vary depending upon the facts and circumstances, and may also vary depending upon what provisions the state's approved SIP already contains.

On June 7, 2013, the Maine Department of Environmental Protection (ME DEP) submitted for EPA approval revisions to its SIP, certifying that its SIP meets all but one of the requirements of section 110(a)(2) of the CAA with respect to the 2010 primary NO₂ NAAQS. The State did not include in its submittal a certification for the transport element of CAA section 110(a)(2)(D)(i)(I). On March 26, 2018, EPA proposed to approve ME DEP's certification that its SIP was adequate to meet most of the program elements required by section 110(a)(2) of the CAA with the exception of subsection (E) regarding state boards, for which EPA proposed a conditional approval. See 83 FR 12905.

On February 21, 2018, ME DEP submitted an analysis addressing the transport elements of CAA section 110(a)(2)(D)(i)(I) for the 2010 primary NO₂ NAAQS.

II. Section 110(a)(2)(D)(i)(I)—Interstate Transport

Section 110(a)(2)(D)(i)(I) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from emitting any air pollutant in amounts that will contribute significantly to nonattainment, or interfere with maintenance, of the NAAQS in another state. The two clauses of this section are referred to as prong 1 (significant contribution to nonattainment) and prong 2 (interference with maintenance of the NAAQS).

III. State Submittal

Maine presents several facts in its SIP submittal concerning the current and future impact of in-state NO₂ emissions on nonattainment, and interference with maintenance, of the NO₂ NAAQS in another state. The approach used to analyze the effects of transport for NO₂ emissions from Maine consists of three elements: (1) The fact that all areas in the United States have been designated unclassifiable/attainment for the 2010 primary NO₂ NAAQS; (2) monitoring data continue to show no violations of that standard at any monitoring station in New England; and (3) that major stationary sources of NO_X in Maine are subject to a variety of federally-enforceable regulations (e.g., prevention of significant deterioration (PSD) permitting requirements under ME DEP's 06-096 CMR 115, Major and Minor License Regulations and 06-096 CMR Chapter 135, Reasonably Achievable Control Technology for Facilities that Emit Nitrogen Oxides ^[2] ).

Due to these facts, Maine asserts that the State does not contribute to nonattainment, or interfere with maintenance, of the NO₂ NAAQS in another state nor will new sources of NO₂ emissions in Maine have such an impact in other states. Furthermore, Maine notes that statewide NO_X emissions have declined from 95,471 tons per year in 2000 to 45,214 tons per year in 2016. ME DEP expects the downward trend to continue as both stationary and mobile sources continue to advance NO_X controls.

IV. EPA's Evaluation

EPA evaluated Maine's analysis as contained in the State's February 21, 2018, infrastructure SIP submittal concerning interstate transport of NO₂ emissions as it pertains to CAA section 110(a)(2)(D)(i)(I) for the 2010 primary NO₂ NAAQS.^[3] With respect to designations of the 2010 primary NO₂ NAAQS, Maine correctly asserts that the entire country is designated unclassifiable/attainment for the 2010 NO₂ NAAQS. See 77 FR 9532 (February 17, 2012). Those designations are based on three-year design values ^[4] for the 2008-2010 time period that showed that all ambient air quality monitoring stations monitoring for NO₂ in the United States met the NAAQS. The most recent three-year design value period, spanning 2014-2016, indicate continued attainment of the 2010 primary NO₂ NAAQS at all NO₂ monitoring stations in the country.^[5] Furthermore, measurements from the most recent three-year design value period showed that all ambient air quality monitoring sites in Maine and the other New England states were well below the standard at no more than 54% of the NO₂ NAAQS.

ME DEP has an EPA-approved PSD permitting program and its regulations, found at 06-096 CMR 115, “Major and Minor License Regulations,” contain appropriate measures to address NO_X emissions from major new and modified stationary sources in the State. Similarly, 06-096 CMR Chapter 138, “Reasonably Achievable Control Technology for Facilities that Emit Nitrogen Oxides,” are EPA-approved regulations that apply to major existing stationary sources of NO_X in Maine. For these reasons, EPA proposes that Maine does not significantly contribute to nonattainment in, or interfere with maintenance by, any other state with respect to the 2010 NO₂ NAAQS and that its SIP contains adequate measures prohibiting such contribution or interference.

V. Proposed Action

In light of the above evaluation, EPA is proposing to approve Maine's February 21, 2018 infrastructure submittal for the 2010 primary NO₂ NAAQS as it pertains to Section 110(a)(2)(D)(i)(I) of the CAA. EPA is soliciting public comments on the issues discussed in this notice. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting comments to this proposed rulemaking by following the instructions listed in the ADDRESSES section of this Federal Register.

VI. Statutory and Executive Order Reviews

Under the Clean Air Act, 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 (Pub. L. 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
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements

Dated: May 17, 2018.

Alexandra Dunn,

Regional Administrator, EPA Region 1.

Footnotes

1.  This requirement applies to both primary and secondary NAAQS, but EPA's approval in this notice applies only to the 2010 primary NAAQS for NO₂ because EPA did not revise the secondary NAAQS for NO₂ in 2010. See 75 FR 35521 & n.2.

2.  EPA notes that Maine's NO_X reasonably available control technology rule is located at 06-096 CMR Chapter 138, not 06-096 CMR Chapter 135.

3.  EPA notes that the evaluation of other states' satisfaction of section 110(a)(2)(D)(i)(I) for the 2010 NO₂ NAAQS can be informed by similar factors found in this proposed rulemaking, but may not be identical to the approach taken in this or any future rulemaking for Maine and depends on available information and state-specific circumstances.

4.  A “design value” is a statistic that describes the air quality status of a given location relative to the level of the NAAQS. The interpretation of the 2010 primary NO₂ NAAQS (set at 100 ppb) including the data handling conventions and calculations necessary for determining compliance with the NAAQS can be found in Appendix T to 40 CFR part 50.

5.  See www.epa.gov/​air-trends/​air-quality-design-values for NO₂ design values.