[Federal Register Volume 60, Number 247 (Tuesday, December 26, 1995)]
[Rules and Regulations]
[Pages 66748-66755]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31034]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[ME26-1-7263a; FRL-5345-9]
Approval and Promulgation of Implementation Plans; Maine;
NOX Exemption Request for Northern Maine and NOX Control
Approval
AGENCY: United States Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The EPA is approving, in final, a limited exemption request
from the requirements contained in section 182(f) of the Clean Air Act
(Act) for the Northern Maine area (specifically, Oxford, Franklin,
Somerset, Piscataquis, Penobscot, Washington, Aroostook, Hancock and
Waldo Counties). These 9 counties, as with the rest of the State of
Maine, are part of the Ozone Transport Region (OTR) as provided for in
section 184(a) of the Clean Air Act. Section 182(f) in combination with
section 184 (relating to ozone transport regions) of the Act requires
States in the OTR, such as Maine, to adopt reasonably available control
technology (RACT) rules for major stationary sources of nitrogen oxides
(NOX) and to provide for nonattainment area new source review
(NSR) for new sources and modifications that are major for NOX.
This exemption request, submitted by the State of Maine on September 7,
1995, is based on a demonstration that NOX emissions in this 9
county area are not impacting Maine's moderate nonattainment areas or
other nonattainment areas in the Ozone Transport Region (OTR) during
times when elevated ozone levels are monitored in those areas. As such,
additional reductions in NOX emissions from these 9 counties
beyond what the state regulation would provide for are not necessary
for attainment in these areas currently in nonattainment, and, because
they do not contribute to the ozone problem anywhere in the OTR are
also not necessary for purposes of showing future attainment for any
other
[[Page 66749]]
area in the OTR. Thus, as provided for in section 182(f)(2), additional
NOX reductions in these areas would constitute excess reductions
that can be waived under the Clean Air Act. EPA believes the State's
demonstration is appropriate and meets the requirements of section
182(f)(2). Maine has requested that EPA combine its approval of this
NOX exemption with its approval of NOX controls for existing
sources in Northern Maine that were submitted to EPA on August 5, 1994
for purposes of meeting the Act's NOX RACT requirements.
Consequently, this action approves a full exemption from nonattainment
NSR requirements for NOX, but only a limited exemption from
NOX control measures for existing sources that would go beyond
what the State regulations provide for.
DATES: This action will become effective February 26, 1996, unless
notice is received by January 25, 1996 that adverse or critical
comments will be submitted. If the effective date is delayed, timely
notice will be published in the Federal Register.
ADDRESSES: Comments may be mailed to Susan Studlien, Deputy Director,
Office of Ecosystem Protection, U.S. Environmental Protection Agency,
Region I, JFK Federal Bldg., Boston, MA 02203. Copies of the State
submittal and EPA's technical support document are available for public
inspection during normal business hours, by appointment at the Office
of Ecosystem Protection, U.S. Environmental Protection Agency, Region
I, One Congress Street, 10th floor, Boston, MA and the Bureau of Air
Quality Control, Department of Environmental Protection, 71 Hospital
Street, Augusta, ME 04333.
FOR FURTHER INFORMATION CONTACT: Robert C. Judge, Environmental
Engineer, Air Quality Planning (ATS), United States Environmental
Protection Agency, Region 1, JFK Federal Building, Boston, MA 02203.
(617) 565-4874.
SUPPLEMENTARY INFORMATION:
I. Background
The air quality planning requirements for the reduction of NOX
emissions are set out in section 182(f) of the Act. Section 182(f) of
the Act requires States with areas designated and classified as
moderate nonattainment and above for ozone, or in ozone transport
regions, to impose the same control requirements for major stationary
sources of NOX as apply to major stationary sources of volatile
organic compounds (VOC). These requirements include the adoption of
RACT rules for major stationary sources and nonattainment area NSR for
major new sources and major modifications. Section 182(f) provides
further that these requirements do not apply for areas inside an ozone
transport region if EPA determines that reductions of NOX from
such areas would not contribute to net ozone benefits in the OTR. In
addition, implementation of NOX controls may be limited if EPA
determines it is necessary to avoid achieving excess reductions. Also,
NOX-related general conformity provisions (see 58 FR 63214) would
not apply in an area that is granted a section 182(f) exemption. For
marginal and below ozone nonattainment areas such as those addressed by
today's action, a section 182(f) exemption relieves the transportation
conformity requirements of 40 CFR 51.436-51.440 and 40 CFR 93.122-
93.124 for NOX (see 60 FR 44795).
The counties that are the subject of this action, Piscataquis,
Penobscot, Washington, and Aroostook counties and the northern portions
of Oxford, Franklin, and Somerset counties, are designated attainment
for the National Ambient Air Quality Standard (NAAQS) for ozone. The
southern portions of Oxford, Franklin, and Somerset counties are
presently designated nonattainment but have never recorded exceedances
of the ozone NAAQS and are not classified under the Clean Air Act. The
Hancock and Waldo County Area is classified as marginal nonattainment
under the Clean Air Act but presently has air quality better than the
NAAQS for ozone. However, each of the counties for which Maine is
seeking an exemption is within the OTR. For areas within the OTR, the
application of NOX requirements under the Clean Air Act may be
limited if it is shown that additional NOX reductions are excess
to attainment needs throughout the region. EPA believes, in the case of
these counties at the northern extremity of the OTR, that NOX
requirements can be waived because the State has submitted an
acceptable demonstration that additional reductions beyond what the
State regulations provide for are not necessary for nonattainment areas
in the State to attain, and because emissions from these areas are not
contributing to the ozone nonattainment problem for any other area in
the OTR, are also not necessary for purposes of showing future
attainment anywhere in the OTR. Maine has made this showing through
extensive air modeling trajectory analyses.
Scope of Exemptions
If the EPA Administrator determines, under Section 182(f) of the
Act, that additional reductions of NOX are excess, the area at
issue shall automatically (i.e., a State would not need to submit an
exemption request for each requirement) be exempt from the following
requirements (as applicable): the NOX-related general conformity
provisions, the NOX-related transportation conformity provisions
in 40 CFR 51.436-51.440 and 40 CFR 93.122-93.124 (``build/ no-build
test''), NOX RACT, and nonattainment area NSR for new sources and
modifications that are major for NOX. Additionally, NOX
emission reductions would not be required of an enhanced automobile
inspection and maintenance (I/M) program. Because I/M is not required
by the Act in Northern Maine, EPA's action on this request has no
impact on I/M requirements.
Transportation Conformity
The transportation conformity rule, entitled ``Criteria and
Procedures for Determining Conformity to State or Federal
Implementation Plans of Transportation Plans, Programs, and Projects
Funded or Approved Under Title 23 U.S.C. or the Federal Transit Act,''
was published in the November 24, 1993 Federal Register (58 FR 62188).
The rule was promulgated under section 176(c)(4) of the Act.
The transportation conformity rule requires emissions analysis of
motor vehicle NOX emissions for ozone nonattainment and
maintenance areas in order to determine the conformity of
transportation plans and programs to state implementation plan
requirements. This analysis must demonstrate that the NOX
emissions which would result from the transportation system if the
proposed transportation plan and program were implemented are within
the total allowable level of NOX emissions from highway and
transit motor vehicles as identified in a submitted or approved
attainment demonstration or maintenance plan.
Until an attainment demonstration, fifteen-percent rate-of-progress
plan (if applicable), or maintenance plan is approved by EPA, the
emissions analysis of the transportation system must also satisfy the
``build/no-build'' test. That is, the analysis must demonstrate that
emissions from the transportation system, if the proposed
transportation plan and program were implemented, would be less than
the emissions from the transportation system if only the previous
applicable transportation plan and program were implemented.
Furthermore, the regional emissions analysis must show that emissions
from the transportation system, if the transportation plan or program
were implemented, would be lower than 1990 levels.
[[Page 66750]]
The transportation conformity rules provide for an exemption from
these so called ``build/no build'' requirements with respect to
NOX if the Administrator determines that additional reductions of
NOX would not contribute to attainment of the ozone NAAQS.
However, all other NOX provisions in the transportation conformity
rule would apply, including the requirement for consistency with the
NOX motor vehicle emissions budget in a submitted control strategy
state implementation plan, or an approved maintenance plan.
The areas addressed in today's action are not required to submit a
control strategy implementation plan revision (i.e., an attainment
demonstration or 15% RFP plan). Further, only a portion of these areas
are required to satisfy the ``build/ no-build test.'' A section 182(f)
exemption would relieve this requirement for NOX for these areas,
but once any maintenance plan is approved by EPA, consistency with the
NOX budget would be required.
General Conformity
The general conformity rule, entitled ``Determining Conformity of
General Federal Actions to State or Federal Implementation Plans,'' was
published in the Federal Register on November 30, 1993 (58 FR 63214).
The rule was promulgated under section 176(c)(4) of the Act. The
general conformity rule provides for an exemption from NOX
requirements if the area has been exempted under section 182(f) of the
Act.
II. Criteria for Evaluation of Section 182(f) Exemption Requests
The criteria established for the evaluation of an exemption request
from the Section 182(f) requirements are set forth in 2 memoranda from
John S. Seitz, Director, Office of Air Quality Planning and Standards,
dated May 27, 1994 and February 8, 1995, both entitled ``Section 182(f)
Nitrogen Oxides (NOX) Exemptions--Revised Process and Criteria.''
Additional guidance is provided in a document entitled ``Guideline for
Determining the Applicability of Nitrogen Oxides Requirements Under
Section 182(f),'' dated December 1993, from EPA, Office of Air Quality
Planning and Standards, Air Quality Management Division.
III. State Submittal
On September 7, 1995, the State of Maine submitted an exemption
request from the requirements contained in Section 182(f) of the Clean
Air Act (Act) for the Northern Maine area (specifically, Oxford,
Franklin, Somerset, Piscataquis, Penobscot, Washington, Aroostook,
Hancock and Waldo Counties). This exemption request is based on a
demonstration that nitrogen oxides (NOX) emissions in this area
are not impacting Maine's moderate nonattainment areas or other
nonattainment areas in the Ozone Transport Region (OTR) during times
when elevated ozone levels are monitored in those areas. As such,
additional reductions in NOX emissions from these 9 counties, that
is, NOX reductions beyond what the state regulations contemplate
providing for, as explained further below, are not necessary for
nonattainment areas in the State to attain, and, are also not necessary
for attainment purposes anywhere in the OTR. Under these circumstances,
as section 182(f)(2) provides, such additional reductions may be waived
as excess reductions. While Maine generally is requesting an exemption
from applicable NOX requirements for this 9 county area, it has
requested a limited exemption from NOX control measure
requirements that apply for existing stationary sources in these areas.
Maine has requested that EPA combine its approval of the exemption
request with its approval of NOX controls for existing stationary
sources in the Northern Maine area previously submitted to EPA on
August 5, 1994. In approving this NOX exemption request, EPA
considered the impact of the limited exemption from NOX
requirements for existing sources. EPA is approving this action
because, under section 182(f)(2), EPA has determined that additional
NOX reductions from these areas would be excess.
IV. Analysis of State Submittal and Supporting Material
EPA has reviewed the material submitted by the State of Maine in
support of this request. As mentioned above, these areas are presently
monitoring attainment of the National Ambient Air Quality Standard
(NAAQS) for ozone. For ozone, an area is considered to be monitoring
attainment of the NAAQS if there are no violations, as determined in
accordance with 40 CFR Part 50.9, based on quality assured monitoring
data from three complete consecutive calendar years. A violation of the
ozone NAAQS occurs when the expected number exceedances per year (over
a three year period) is greater than 1.0. An exceedance occurs when the
daily maximum hourly ozone concentration equals or exceeds 0.125 parts
per million (ppm). Only Hancock and Waldo Counties, which is a marginal
nonattainment area, were classified under the Clean Air Act, as amended
in 1990. This area has only measured a single exceedance of the
standard since 1992.
Thus, the annual average expected exceedances in the latest three
year period is less than 1.0 and the entire area is meeting the air
quality standard for ozone. In order for the Hancock and Waldo Counties
area to be redesignated to attainment, EPA will need to take action on
a redesignation request, including a maintenance plan.
A more detailed summary of the ozone monitoring data for both areas
is provided in the EPA technical support document prepared for this
action.
V. Air Trajectory Analyses
Maine prepared trajectory analyses for each day when the ozone
standard was exceeded in either New Hampshire or Maine. Additionally,
Maine prepared detailed statistical trajectory analyses for many days
based on ozone monitors just southwest of this 9 county area. Hundreds
of data points were analyzed, and this effort will be described in more
detail below.
Modeling
EPA has performed extensive air quality modeling throughout the
Northeast for the past several years utilizing the regional oxidant
model (ROM). This modeling domain covers virtually all of northern
Maine. Essentially, all ROM analyses have shown no actual or predicted
exceedances in this 9 county area, which is northeast of the remainder
of the OTR. (It should be noted that exceedances were predicted in the
coastal portions of Waldo, Hancock, and Washington Counties in 1987 and
1988, and, during this timeframe, exceedances were actually measured in
Hancock and Waldo Counties forming the basis for their designation as
marginal ozone nonattainment areas. No exceedances were measured in
Washington County. However, since 1992, only Hancock County has
measured a single exceedance of the standard. Given these analyses, and
the direction of the ozone ``plume,'' it is reasonable to expect
negligible contribution from these areas to the overall ozone
nonattainment situation in the OTR.)
However, ROM modeling analyses are not intended to actually predict
attainment or nonattainment. EPA guidance requires more extensive
modeling using photochemical grid modeling in most areas. While this
more sophisticated modeling is technically not required anywhere in
Maine, in concert with Connecticut, Massachusetts, New Hampshire, Rhode
Island, and Vermont, extensive analyses
[[Page 66751]]
are being performed utilizing the urban airshed model (UAM). The EPA
UAM modeling guideline requires that modeling domains be sufficiently
large to analyze the effects of ozone and ozone precursors throughout
the entire area of concern. Based on extensive analyses, including ROM
results, EPA agreed that the UAM modeling domain would not even cover
the vast majority of this 9 county area (it does include a portion of
Oxford county based simply on the geographical shape of the county and
the size of the domain). Consequently, the UAM modeling does not
reflect the effects of ozone and ozone precursors from the northern
Maine area. On the other hand, the determination that the northern
Maine area could be excluded from the modeling domain reflects the
degree of certitude that ozone precursor reductions from this area
would not play a significant role in the process of attaining the ozone
standard in the OTR.
The ``Back Trajectory Analyses'' and the ``Receptor Oriented
Analyses'' include the most substantive technical portion of the
September 7, 1995 NOX exemption request and are described below.
Back Trajectory Analyses
Trajectories are the path of an air mass over time; back
trajectories trace the path of an air mass back in time to determine
the origin of that air mass. The trajectory analyses, which use the HY-
SPLIT trajectory model, show that for the ozone monitoring sites
chosen, (Port Clyde, ME; Rye, NH; Bennington, VT; and Bridgeport, CT)
the back trajectories do not pass over northern Maine and demonstrate
that northern Maine cannot be a source region for ozone on days with
elevated ozone levels. (Sites were chosen to represent a variety of
locations throughout New England.) Trajectories were performed for
every day that the monitor of interest exceeded 0.10 ppm (at 3:00 pm)
between 1989 and 1993. Occasionally, some of these back trajectories
(i.e., those based on Port Clyde monitored readings) pass over extreme
western Maine, specifically Oxford County. Based on the small amount of
emissions emitted from Oxford County, it is unlikely that Oxford County
plays any measurable role in the ozone found in Port Clyde on days that
Port Clyde exceeded 0.12 ppm.
Furthermore, EPA feels that the HY-SPLIT model, in this application
in Maine, has a slight westerly bias in its back trajectory approach
over what the true low-level/surface back trajectory is on days with
high ozone potential. Given this, it is probable that Oxford County
emissions do not even pass over Port Clyde on the days in question.
This westerly bias is caused by HY-SPLIT's reliance on the Nested Grid
Model (NGM) winds which are almost exclusively upper-air winds, not
surface winds. The technical support for this effort describes this
phenomenon in more detail, and can be found in the docket for this
action. Nevertheless, the back trajectory work Maine has performed does
show that a NOX exemption for the 9 counties is justified.
Receptor Oriented Analyses
The receptor analyses, also part of Maine's technical support, is
just a different way of looking at back trajectories from the HY-SPLIT
model. The NOX exemption request states: ``Residence time analysis
performed for these ozone monitoring sites involves taking a large
number of individual back-trajectories from a site and examining the
statistical relationship between the ozone monitored at the site and
the location along each back-trajectory.'' The analysis goes on to
state that although the technique has been shown to work with non-
chemically reactive air pollutants, it may not perform as well with
ozone. Nevertheless, the exemption request provides that: ``the
technique does indicate the primary directional biases from which
regional scale air mass transport may be suspected.''
The receptor oriented analysis also shows that the 9 county
NOX exemption area contributes much less ``ozone'' to southern and
coastal Maine (Gardiner and Port Clyde) than do other areas to the west
and south. First, Maine performed analyses which show the upwind
locations of air masses 3-7 hours prior to ozone concentrations
exceeding 0.040 ppm at either Gardiner or Port Clyde, Maine from 1989
to 1993. Next, they ran 25 hour back trajectories for every day in
which an air mass passed over different portions of New England from
1989 to 1993. Analysis of these graphical depictions supports Maine's
contention that these northern counties do not contribute to elevated
ozone levels in Maine, or elsewhere in the OTR. These two types of
meteorological analyses support Maine's exemption request essentially
by demonstrating that emissions from these areas do not generally pass
over any other part of the OTR on days when even moderate levels of
ozone are measured.
VI. Maine's NOX Rules
On August 5, 1994, the Maine Department of Environmental Protection
(DEP) submitted to EPA, Chapter 138 of the Maine DEP's regulations,
``Reasonably Available Control Technology for Facilities that Emit
Nitrogen Oxides,'' for inclusion into the State Implementation Plan
(SIP). On September 7, 1995, the Maine DEP submitted a request to the
EPA to grant a limited exemption from the requirements of NOX RACT
for facilities located in the non-moderate areas of the State (these 9
counties). In its NOX exemption request, Maine requested that EPA
approve the appropriate portions of Chapter 138 in combination with
approving the exemption. At this time, EPA's action on the NOX
control rule submittal is solely for the 9 county area. Thus, EPA is
approving Chapter 138 only as it applies to the 9 county area in Maine.
Although EPA agrees that Chapter 138 sets enforceable conditions
which will achieve a level of NOX control, EPA is not evaluating
these standards set in Chapter 138 as to whether or not they represent
RACT for all of the emission units located in these 9 counties. EPA is
also not evaluating this rule in regard to the requirements for the
remaining 7 counties in Maine. While EPA's preliminary analysis
suggests that this level of control does not represent RACT for these 9
counties, EPA will be taking formal action on the rule as it pertains
to the remaining 7 counties at a later date. Based on the analysis
prepared as part of the limited exemption request, EPA has determined
that NOX reductions, beyond what is required by Chapter 138 for
facilities in the non-moderate areas, are not necessary for purposes of
showing future attainment in the Maine moderate nonattainment areas or
any areas in the OTR. In EPA's NOX Supplement to the General
Preamble for implementing nonattainment requirements, EPA noted that
states remain free to reduce NOX emissions for a variety of
reasons. 57 Fed. Reg. 55621, 55627 (Nov. 25, 1992). As long as EPA
determines that these NOX reductions are not counterproductive or
will not delay ozone attainment, EPA will approve them into the SIP.
There is no evidence that the NOX reductions from Chapter 138 are
counterproductive, and the conclusion of the demonstration supporting
the exemption request is that additional NOX reductions from this
area are not necessary for purposes of attainment anywhere in the OTR.
Therefore, although EPA is making no formal judgement as to whether
this level of control is RACT, EPA believes that the controls required
by Chapter 138 in the 9 non-moderate counties will strengthen the SIP.
[[Page 66752]]
As stated above, the analysis contained in the State's limited
exemption request assumes that reductions beyond those required by
Chapter 138 in the non-moderate areas are not necessary for purposes of
attainment for either the moderate nonattainment areas or other states
in the OTR. Therefore, emission reductions achieved from units
operating at rates below the limitations of Chapter 138 in this 9
county area cannot be considered creditable for the purpose of
facilities complying with either New Source Review offsetting or
NOX RACT requirements at facilities located in the moderate
nonattainment areas (see the TSD prepared for this action for
additional details).
VII. New Source Review
EPA is not taking action on Maine's New Source Review rule in this
rulemaking. However, in a separate action, EPA is proposing to approve
revisions to Maine's New Source Review rules. These revisions include
an exemption provision for major new sources or major modifications of
NOX. This provision states that lowest achievable emission rate
(LAER) and offsets for NOX shall not apply in those areas that
have received an exemption from the EPA under Section 182(f) of the
CAA.
VIII. Withdrawal of the Exemptions
Continuation of the Section 182(f) exemptions granted herein is
based on the demonstration that NOX emissions in this area are not
impacting Maine's moderate nonattainment areas or other nonattainment
areas in the Ozone Transport Region (OTR) during times when elevated
ozone levels are monitored in those areas. If future air quality
analyses demonstrate that additional NOX controls are necessary
and the exemption should no longer apply, EPA will provide notice to
the public in the Federal Register. A determination that the NOX
exemption no longer applies would mean that the NOX NSR and the
NOX-related general conformity provisions (see 58 FR 63214) would
immediately be applicable. For the marginal and below ozone
nonattainment areas addressed by today's action, rescinding this
section 182(f) exemption would no longer relieve the transportation
conformity requirements of 40 CFR 51.436-51.440 and 40 CFR 93.122-
93.124 for NOX (see 60 FR 44795). The requirement for NOX
RACT would also be applicable, with a reasonable time provided as
necessary to allow major stationary sources subject to the RACT
requirements to purchase, install and operate the required controls.
The EPA believes that the State may provide sources a reasonable time
period after the EPA determination to actually meet the RACT emission
limits. The EPA expects such time period to be as expeditious as
practicable, but in no case longer than 24 months.
IX. Miscellaneous Topics
Comments From Parties Interested in Previous NOX Exemptions
An adverse comment letter has been previously submitted by three
environmental groups and contained generic comments objecting to the
EPA's general policy on NOX exemptions. The three environmental
groups who submitted the generic comments requested that these comments
be included in each EPA rulemaking action on NOX exemption
requests. While some of the comments are not entirely relevant to this
action, we have responded to them in an effort to be complete. EPA is
treating these comments as part of the administrative record for this
action, and they may serve as the basis for a challenge to this final
action without being resubmitted to the Agency in response to the
proposed rule.
Comment
In the past, commenters argued that NOX exemptions are
provided for in two separate parts of the Act, in sections 182(b)(1)
and 182(f). Because the NOX exemption tests in sections 182(b)(1)
and 182(f)(1) include language indicating that action on such requests
should take place ``when [EPA] approves a plan or plan revision,''
these commenters conclude that all NOX exemption determinations by
the EPA, including exemption actions taken under the petition process
established by section 182(f)(3), must occur during consideration of an
approvable attainment or maintenance plan, unless the area has been
redesignated as attainment. The commenters also argue that even if the
petition procedures of section 182(f)(3) may be used to relieve areas
of certain NOX requirements, exemptions from the NOX
conformity requirements must follow the process provided in section
182(b)(1), since this is the only provision explicitly referenced by
section 176(c), the Act's conformity provisions.
Response
Section 182(f) contains very few details regarding the
administrative procedures for acting on NOX exemption requests.
The absence of specific guidelines by Congress leaves the EPA with
discretion to establish reasonable procedures consistent with the
requirements of the Administrative Procedure Act (APA).
The EPA disagrees with the commenters regarding the process for
considering NOX exemption requests under section 182(f), and
instead believes that sections 182(f)(1) and 182(f)(3) provide
independent procedures by which the EPA may act on NOX exemption
requests. The language in section 182(f)(1), which indicates that the
EPA should act on NOX exemptions in conjunction with action on a
plan or a plan revision, does not appear in section 182(f)(3). While
section 182(f)(3) references section 182(f)(1), the EPA believes that
this reference encompasses only the substantive tests in paragraph (1)
[and by extension, paragraph (2)], not the procedural requirement that
the EPA act on exemptions only when acting on State Implementation
Plans (SIPs). Additionally, section 182(f)(3) provides that
``person[s]'' [which section 302(e) of the Act defines to include
States] may petition for NOX exemptions ``at any time,'' and
requires the EPA to make its determination within six months of the
petition's submission. These key differences lead EPA to believe that
Congress intended the exemption petition process of paragraph (3) to be
distinct and more expeditious than the longer plan revision process
intended under paragraph (1).
With respect to major stationary sources, section 182(f) requires
States to adopt NOX RACT and NSR rules, unless exempted. These
rules were generally due to be submitted to the EPA by November 15,
1992. Thus, in order to avoid the CAA sanctions, areas seeking a
NOX exemption would have needed to submit this exemption request
for EPA review and rulemaking action several months before November 15,
1992. In contrast, the CAA specifies that the attainment demonstrations
were not due until November 1993 or 1994 (and EPA may take 12 to 18
months to approve or disapprove the demonstrations). For marginal ozone
nonattainment areas (subject to NOX NSR), no attainment
demonstrations are called for in the CAA. For areas seeking
redesignation to attainment of the ozone NAAQS, the CAA does not
specify a deadline for submittal of maintenance demonstrations (in
reality, EPA would generally consider redesignation requests without
accompanying maintenance plans to be unacceptable). Clearly, the CAA
envisions the submittal of and EPA action on NOX exemption
requests, in some cases, prior to submittal of attainment or
maintenance demonstrations. It is
[[Page 66753]]
important to note that none of these areas in Maine even needed to
submit attainment demonstrations.
With respect to the comment that section 182(b)(1) is the
appropriate authority for granting interim-period transportation
conformity NOX exemptions, EPA agrees with the commenters and has
published an interim final rule that changes the transportation
conformity rule's reference from section 182(f) to section 182(b)(1) as
the correct authority under the Act for waiving the NOX build/no-
build and less-than-1990 emissions tests for certain areas. (see 60 FR
44795) However, EPA also notes that section 182(b)(1), by its terms,
only applies to moderate and above ozone nonattainment areas.
Consequently, EPA believes that the interim-reductions requirements of
section 176(c)(3)(A)(iii), and hence the authority provided in section
182(b)(1) to grant relief from those interim-reduction requirements,
apply only with respect to those areas that are subject to section
182(b)(1). EPA intends to continue to apply the transportation
conformity rule's build/no-build and less-than-1990 emissions tests for
purposes of implementing the requirements of section 176(c)(1), and EPA
intends to continue to provide relief from those requirements under
section 182(f). In addition, because general federal actions are not
subject to section 176(c)(3)(A)(iii), which explicitly references
section 182(b)(1), EPA will also continue to offer relief under section
182(f)(3) from the applicable NOX requirements of the general
conformity rule.
In order to demonstrate conformity, transportation-related federal
actions that are taken in ozone nonattainment areas not subject to
section 182(b)(1) and, hence, not subject to section 176(c)(3)(A)(iii)
must still be consistent with the criteria specified under section
176(c)(1). Specifically, these actions must not, with respect to any
standard, cause or contribute to new violations, increase the frequency
or severity of existing violations, or delay attainment. In addition,
such actions must comply with the relevant requirements and milestones
contained in the applicable state implementation plan, such as
reasonable further progress schedules, assumptions specified in the
attainment or maintenance demonstrations, numerical emission limits, or
prohibitions. EPA believes that the build/no-build and less-than-1990
emissions tests provide an appropriate basis for such areas to
demonstrate compliance with the above criteria.
As noted earlier, EPA intends to continue to offer relief under
section 182(f) from the interim NOX requirements of the conformity
rules that would apply under section 176(c)(1) for the areas not
subject to section 182(b)(1) in the manner described above. EPA
believes this approach is consistent both with the way NOX
requirements in ozone nonattainment areas are treated under the Act
generally, and under section 182(f) in particular. The basic approach
of the Act is that NOX reductions should apply when beneficial to
an area's attainment goals, and should not apply when unhelpful or
counterproductive. Section 182(f) reflects this approach but also
includes specific substantive tests which provide a basis for EPA to
determine when NOX requirements should not apply. There is no
substantive difference between the technical analysis required to make
an assessment of NOX impacts on attainment in a particular area
whether undertaken with respect to mobile source or stationary source
NOX emissions. Moreover, where EPA has determined that NOX
reductions will not benefit attainment or would be counterproductive in
an area, the EPA believes it would be unreasonable to insist on
NOX reductions for purposes of meeting reasonable further progress
or other milestone requirements. Thus, even as to the conformity
requirements of section 176(c)(1), EPA believes it is reasonable and
appropriate, first, to offer relief from the applicable NOX
requirements of the general and transportation conformity rules in
areas where such reductions would not be beneficial and, second, to
rely in doing so based on the exemption tests provided in section
182(f).
Comment
Commenters argue that waiver of NOX control requirements is
unlawful if such a waiver would impede attainment and maintenance of
the ozone standard in downwind areas.
Response
These areas in Maine are generally considered downwind of the
remainder of the United States. Maine's technical demonstration showed
clearly that the waiver of these controls will not impede attainment or
maintenance of the NAAQS for ozone standard anywhere.
Comment
Comments were received regarding the scope of exemption of areas
from the NOX requirements of the conformity rules. The commenters
argue that such exemptions waive only the requirements of section
182(b)(1) to contribute to specific annual reductions; not the
requirement that conformity SIPs contain information showing the
maximum amount of motor vehicle NOX emissions allowed under the
transportation conformity rules and, similarly, the maximum allowable
amounts of any such NOX emissions under the general conformity
rules. The commenters admit that, in prior guidance, EPA has
acknowledged the need to amend a drafting error in the existing
transportation conformity rules to ensure consistency with motor
vehicle emissions budgets for NOX, but want EPA, in actions on
NOX exemptions, to explicitly affirm this obligation and to also
avoid granting waivers until a budget controlling future NOX
increases is in place.
Response
EPA has recently addressed this issue through rulemaking and this
rulemaking appropriately reflects EPA's position on this issue. (see 60
FR 57179)
Comment
Commenters argue that the Act does not authorize any waiver of the
NOX reduction requirements until conclusive evidence exists that
such reductions are counterproductive.
Response
EPA does not agree with this comment since it ignores the
Congressional intent as evidenced by the plain language of section
182(f), the structure of the Title I ozone subpart as a whole, and
relevant legislative history. By contrast, in developing and
implementing its NOX exemption policies, EPA has sought an
approach that reasonably accords with that intent. Section 182(f), in
addition to imposing control requirements on major stationary sources
of NOX similar to those that apply for sources of VOC, also
provides for an exemption (or limitation) from application of these
requirements if, under one of several tests, EPA determines that in
certain areas NOX reductions would generally not be beneficial
towards attainment of the ozone standard. In section 182(f)(1),
Congress explicitly conditioned action on NOX exemptions on the
results of an ozone precursor study required under section 185B of the
Act. Because of the possibility that reducing NOX in an area may
either not contribute to ozone attainment or may cause the ozone
problem to worsen, Congress included attenuating language, not just in
section 182(f), but throughout Title I of the Act, to avoid requiring
NOX reductions where such would not be beneficial or would be
counterproductive. In describing these various ozone
[[Page 66754]]
provisions, including section 182(f), the House Conference Committee
Report states in the pertinent part: ``[T]he Committee included a
separate NOX/VOC study provision in section [185B] to serve as the
basis for the various findings contemplated in the NOX provisions.
The Committee does not intend NOX reduction for reduction's sake,
but rather as a measure scaled to the value of NOX reductions for
achieving attainment in the particular ozone nonattainment area.'' H.R.
Rep. No. 490, 101st Cong., 2d Sess. 257-258 (1990).
As noted in response to an earlier comment, the command in section
182(f)(1) that EPA ``shall consider'' the 185B report taken together
with the timeframe the Act provides for completion of the report and
for acting on NOX exemption petitions clearly demonstrate that
Congress believed the information in the completed section 185B report
would provide a sufficient basis for EPA to act on NOX exemption
requests, even absent the additional information that would be included
in affected areas' attainment or maintenance demonstrations. While
there is no specific requirement in the Act that EPA actions granting
NOX exemption requests must await ``conclusive evidence,'' as the
commenters argue, there is also nothing in the Act to prevent EPA from
revisiting an approved NOX exemption if warranted by additional,
current information.
In addition, the EPA believes, as described in EPA's December 1993
guidance, that section 182(f)(1) of the Act provides that the new
NOX requirements shall not apply (or may be limited to the extent
necessary to avoid excess reductions) if the Administrator determines
that any one of the following tests is met:
(1) In any area, the net air quality benefits are greater in the
absence of NOX reductions from the sources concerned;
(2) In nonattainment areas not within an ozone transport region,
additional NOX reductions would not contribute to ozone attainment
in the area; or
(3) In nonattainment areas within an ozone transport region,
additional NOX reductions would not produce net ozone air quality
benefits in the transport region.
Based on the plain language of section 182(f), EPA believes that
each test provides an independent basis for a full or limited NOX
exemption.
Only the first test listed above is based on a showing that
NOX reductions are ``counter productive.'' If one of the tests is
met (even if another test is failed or not applied), the section 182(f)
NOX requirements would not apply or, under the excess reductions
provision, a portion of these requirements would not apply.
Processing NOX Exemptions
As stated above, section 182(f) contains very few details regarding
the administrative procedure for EPA action on NOX exemption
requests. The absence of specific guidelines by Congress leaves EPA
with discretion to establish reasonable procedures, consistent with the
requirements of the Administrative Procedure Act (APA).
Although a section 182(f) petition may determine the applicability
of SIP requirements pertaining to NOX emission reductions and
controls, this petition itself is not a SIP, nor must it be a revision
to a SIP. Therefore, a petition is not required to undergo a public
hearing, nor must a petition be submitted by a Governor of a State or
his designee. This submission was made by the Maine Commissioner of the
Department of Environmental Protection. A public hearing was not held
on the September 7, 1995 NOX exemption request.
X. Final Action
The EPA is approving the exemption request for the Northern Maine
area from the Section 182(f) NOX requirements based upon the
evidence provided by the State and the State's compliance with the
requirements outlined in the applicable EPA guidance. This action
exempts the Oxford, Franklin, Somerset, Piscataquis, Penobscot,
Washington, Aroostook, Hancock and Waldo counties from the requirements
to implement NOX control measures for existing stationary sources
(other than those controls specified herein), nonattainment area NSR
for new sources and modifications that are major for NOX, the
NOX-related general conformity provisions, and the NOX-
related transportation conformity provisions in 40 CFR 51.436-51.440
and 40 CFR 93.122-93.124 (``build/no-build test''). If EPA determines
based on future air quality analyses that NOX controls in these
areas are necessary, rulemaking may be initiated which may mean that
this NOX exemption no longer applies. As stated before, the State
of Maine requested only a limited exemption from NOX control
requirements for existing stationary sources. EPA is approving this
level of control as strengthening the existing SIP.
XI. Procedural Background
Nothing in this action shall be construed as permitting or allowing
or establishing a precedent for any future request for a revision to
any state implementation plan. Each request for revision to the state
implementation plan shall be considered separately in light of specific
technical, economic, and environmental factors and in relation to
relevant statutory and regulatory requirements.
XII. Regulatory Process
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000. Today's exemption does not create any new requirements, but
allows suspension of the indicated requirements for the life of the
exemption. Therefore, because the approval does not impose any new
requirements, I certify that it does not have a significant impact on
any small entities affected. This action also approves certain controls
already in effect at the State level, and, as such, imposes no
additional regulatory burden on these facilities.
Under Section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by February 26, 1996. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See Section 307(b)(2)).
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
State, local, or tribal governments in the aggregate.
[[Page 66755]]
Through submission of this NOX waiver request and NOX
control revisions to its state implementation plan, the State has
elected to adopt the program provided for under Section 110 of the
Clean Air Act. These rules may bind State, local and tribal governments
to perform certain actions and also require the private sector to
perform certain duties. To the extent that the rules being approved by
this action will impose new requirements, such sources are already
subject to these regulations under State law. Accordingly, no
additional costs to State, local, or tribal governments, or to the
private sector, result from this action. EPA has also determined that
this final action does not include a mandate that may result in
estimated costs of $100 million or more to State, local, or tribal
governments in the aggregate or to the private sector.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Nitrogen oxides,
Ozone, Volatile organic compounds, Intergovernmental relations,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 4201-7671q.
Note: Incorporation by reference of the State Implementation
Plan for the State of Maine was approved by the Director of the
Federal Register on July 1, 1982.
Dated: December 1, 1995.
Carol M. Browner,
Administrator.
Part 52 of chapter I, title 40 of the Code of Federal Regulations
is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart U--Maine
2. Section 52.1020 is amended by adding paragraph (c)(41) to read
as follows:
Sec. 52.1020 Identification of plan.
* * * * *
(c) * * *
(41) Revisions to the State Implementation Plan submitted by the
Maine Department of Environmental Protection on August 5, 1994 related
to NOX controls in Oxford, Franklin, Somerset, Piscataquis,
Penobscot, Washington, Aroostook, Hancock and Waldo Counties.
(i) Incorporation by reference.
(A) A Letter from the Maine Department of Environmental Protection
dated August 5, 1994 submitting a revision to the Maine State
Implementation Plan.
(B) Chapter 138 of the Maine DEP's regulations, ``Reasonably
Available Control Technology for Facilities that Emit Nitrogen Oxides''
for sources only in Oxford, Franklin, Somerset, Piscataquis, Penobscot,
Washington, Aroostook, Hancock and Waldo Counties (excepted portions
include Sections 1.A.1. and 3.B.). This rule was effective August 3,
1994.
3. In Sec. 52.1031, Table 52.1031 is amended by adding state
citation 138 in numerical order to read as follows:
Sec. 52.1031 EPA-approved Maine regulations.
* * * * *
Table 52.1031.--EPA-Approved Rules and Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Date
State citation Title/subject adopted by Date approved by Federal Register 52.1020
State EPA citation
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
138............................. Reasonably 8/3/94 December 26, 1995. 60 FR (c)(41) Affects sources only in
Available Control Oxford, Franklin,
Technology For Somerset, Piscataquis,
Facilities That Penobscot, Washington,
Emit Nitrogen Aroostook, Hancock and
Oxides. Waldo Counties
(excepted portions of
rule include Sections
1.A.1. and 3.B.).
--------------------------------------------------------------------------------------------------------------------------------------------------------
4. Section 52.1023 is amended by adding paragraph (c) to read as
follows:
Sec. 52.1023 Control strategy: Ozone.
* * * * *
(c) Approval. EPA is approving an exemption request submitted by
the Maine Department of Environmental Protection on September 7, 1995,
for the Northern Maine area from the NOX requirements contained in
Section 182(f) of the Clean Air Act. This approval exempts Oxford,
Franklin, Somerset, Piscataquis, Penobscot, Washington, Aroostook,
Hancock and Waldo Counties from the requirements to implement controls
beyond those approved in Sec. 52.1020(c)(41) for major sources of
nitrogen oxides (NOX), nonattainment area new source review (NSR)
for new sources and modifications that are major for NOX, and the
applicable NOX-related requirements of the general and
transportation conformity provisions.
[FR Doc. 95-31034 Filed 12-22-95; 8:45 am]
BILLING CODE 6560-50-P
