Determination of Attainment of Ozone Standard for Lewiston-Auburn and Knox and Lincoln Counties, Maine Ozone Nonattainment Areas and Determination Regarding Applicability of Certain Reasonable Further Progress and Attainment Demonstration Requirements

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[A-1-FRL-5216-9]

Determination of Attainment of Ozone Standard for Lewiston-Auburn

and Knox and Lincoln Counties, Maine Ozone Nonattainment Areas and

Determination Regarding Applicability of Certain Reasonable Further

Progress and Attainment Demonstration Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: The EPA is determining, through direct final procedure, that

the Lewiston-Auburn and the Knox and Lincoln Counties moderate ozone

nonattainment areas in Maine have attained the National Ambient Air

Quality Standard (NAAQS) for ozone. These determinations are based upon

three years of complete, quality assured ambient air monitoring data

for the years 1992-94 that demonstrate that the ozone NAAQS has been

attained in both areas. On the basis of these determinations, EPA is

also determining that certain reasonable further progress and

attainment demonstration requirements, along with certain other related

requirements, of Part D of Title 1 of the Clean Air Act are not

applicable to these areas for so long as these areas continue to attain

the ozone NAAQS. In the proposed rules section of this Federal

Register, EPA is proposing these determinations and soliciting public

comment on them. If adverse comments are received on this direct final

rule, EPA will withdraw this final rule and address these comments in a

final rule on the related proposed rule which is being published in the

proposed rules section of this Federal Register.

DATES: This action will be effective July 21, 1995 unless notice is

received by July 6, 1995 that any person wishes to submit adverse or

critical comments. If the effective date is delayed, timely notice will

be published in the Federal Register.

ADDRESSES: Comments may be mailed to Susan Studlien, Acting Director,

Air, Pesticides and Toxics Management Division, U.S. Environmental

Protection Agency, Region I, JFK Federal Bldg., Boston, MA 02203.

Copies of the material relevant to this action are available for public

inspection during normal business hours, by appointment at the Air,

Pesticides and Toxics [[Page 29764]] Management Division, 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: Richard P. Burkhart, Air, Pesticides

and Toxics Management Division, U.S. Environmental Protection Agency,

Region I, JFK Federal Bldg., Boston, MA 02203. Phone: 617-565-3244.

SUPPLEMENTARY INFORMATION:

I. Background

Subpart 2 of Part D of Title I of the Clean Air Act (``CAA'')

contains various air quality planning and state implementation plan

(``SIP'') submission requirements for ozone nonattainment areas. EPA

believes it is reasonable to interpret provisions regarding reasonable

further progress (``RFP'') and attainment demonstrations, along with

certain other related provisions, so as not to require SIP submissions

if an ozone nonattainment area subject to those requirements is

monitoring attainment of the ozone standard (i.e., attainment of the

NAAQS demonstrated with three consecutive years of complete, quality

assured air quality monitoring data). As described below, EPA has

previously interpreted the general provisions of subpart 1 of part D of

Title I (sections 171 and 172) so as not to require the submission of

SIP revisions concerning RFP, attainment demonstrations, or contingency

measures. As explained in a memorandum dated May 10, 1995 from John

Seitz to the Regional Air Division Directors, entitled Reasonable

Further Progress, Attainment Demonstration, and Related Requirements

for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air

Quality Standard, EPA believes it is appropriate to interpret the more

specific RFP, attainment demonstration and related provisions of

subpart 2 in the same manner.

First, with respect to RFP, section 171(1) states that, for

purposes of part D of Title I, RFP ``means such annual incremental

reductions in emissions of the relevant air pollutant as are required

by this part or may reasonably be required by the Administrator for the

purpose of ensuring attainment of the applicable national ambient air

quality standard by the applicable date.'' Thus, whether dealing with

the general RFP requirement of section 172(c)(2), or the more specific

RFP requirements of subpart 2 for classified ozone nonattainment areas

(such as the 15 percent plan requirement of section 182(b)(1)), the

stated purpose of RFP is to ensure attainment by the applicable

attainment date.1 If an area has in fact attained the standard,

the stated purpose of the RFP requirement will have already been

fulfilled and EPA does not believe that the area need submit revisions

providing for the further emission reductions described in the RFP

provisions of section 182(b)(1).

\1\ EPA notes that paragraph (1) of subsection 182(b) is

entitled ``PLAN PROVISIONS FOR REASONABLE FURTHER PROGRESS'' and

that subparagraph (B) of paragraph 182(c)(2) is entitled

``REASONABLE FURTHER PROGRESS DEMONSTRATION,'' thereby making it

clear that both the 15 percent plan requirement of section 182(b)(1)

and the 3 percent per year requirement of section 182(c)(2) are

specific varieties of RFP requirements.

---------------------------------------------------------------------------

EPA notes that it took this view with respect to the general RFP

requirement of section 172(c)(2) in the General Preamble for the

Interpretation of Title I of the Clean Air Act Amendments of 1990 (57

FR 13498 (April 16, 1992)), and it is now extending that interpretation

to the specific provisions of subpart 2. In the General Preamble, EPA

stated, in the context of a discussion of the requirements applicable

to the evaluation of requests to redesignate nonattainment areas to

attainment, that the ``requirements for RFP will not apply in

evaluating a request for redesignation to attainment since, at a

minimum, the air quality data for the area must show that the area has

already attained. Showing that the State will make RFP towards

attainment will, therefore, have no meaning at that point.'' (57 FR at

13564.) 2

\2\ See also ``Procedures for Processing Requests to Redesignate

Areas to Attainment,'' from John Calcagni, Director, Air Quality

Management Division, to Regional Air Division Directors, September

4, 1992, at page 6 (stating that the ``requirements for reasonable

further progress * * * will not apply for redesignations because

they only have meaning for areas not attaining the standard'')

(hereinafter referred to as ``September 1992 Calcagni memorandum'').

---------------------------------------------------------------------------

Second, with respect to the attainment demonstration requirements

of section 182(b)(1) an analogous rationale leads to the same result.

Section 182(b)(1) requires that the plan provide for ``such specific

annual reductions in emissions * * * as necessary to attain the

national primary ambient air quality standard by the attainment date

applicable under this Act.'' As with the RFP requirements, if an area

has in fact monitored attainment of the standard, EPA believes there is

no need for an area to make a further submission containing additional

measures to achieve attainment. This is also consistent with the

interpretation of certain section 172(c) requirements provided by EPA

in the General Preamble to Title I, as EPA stated there that no other

measures to provide for attainment would be needed by areas seeking

redesignation to attainment since ``attainment will have been

reached.'' (57 FR at 13564; see also September 1992 Calcagni memorandum

at page 6.) Upon attainment of the NAAQS, the focus of state planning

efforts shifts to the maintenance of the NAAQS and the development of a

maintenance plan under section 175A.

Similar reasoning applies to the contingency measure requirements

of section 172(c)(9). EPA has previously interpreted the contingency

measure requirement of section 172(c)(9) as no longer being applicable

once an area has attained the standard since those ``contingency

measures are directed at ensuring RFP and attainment by the applicable

date.'' (57 FR at 13564; see also September 1992 Calcagni memorandum at

page 6.) As the section 172(c)(9) contingency measures are linked with

the RFP requirements of section 182(b)(1), the requirement no longer

applies once an area has attained the standard.

EPA emphasizes that the lack of a requirement to submit the SIP

revisions discussed above exists only for as long as an area designated

nonattainment continues to attain the standard. If EPA subsequently

determines that such an area has violated the NAAQS, the basis for the

determination that the area need not make the pertinent SIP revisions

would no longer exist. The EPA would notify the State of that

determination and would also provide notice to the public in the

Federal Register. Such a determination would mean that the area would

have to address the pertinent SIP requirements within a reasonable

amount of time, which EPA would establish taking into account the

individual circumstances surrounding the particular SIP submissions at

issue. Thus, a determination that an area need not submit one of the

SIP submittals amounts to no more than a suspension of the requirement

for so long as the area continues to attain the standard.

The State must continue to operate an appropriate air quality

monitoring network, in accordance with 40 CFR Part 58, to verify the

attainment status of the area. The air quality data relied upon to

determine that the area is attaining the ozone standard must be

consistent with 40 CFR Part 58 requirements and other relevant EPA

guidance and recorded in EPA's Aerometric Information Retrieval System

(AIRS).

The determinations that are being made with this Federal Register

notice [[Page 29765]] are not equivalent to the redesignation of the

area to attainment. Attainment of the ozone NAAQS is only one of the

criteria set forth in section 107(d)(3)(E) that must be satisfied for

an area to be redesignated to attainment. To be redesignated the state

must submit and receive full approval of a redesignation request for

the area that satisfies all of the criteria of that section, including

the requirement of a demonstration that the improvement in the area's

air quality is due to permanent and enforceable reductions and the

requirements that the area have a fully-approved SIP meeting all of the

applicable requirements under section 110 and Part D and a fully-

approved maintenance plan.

Furthermore, the determinations made in this notice do not shield

an area from future EPA action to require emissions reductions from

sources in the area where there is evidence, such as photochemical grid

modeling, showing that emissions from sources in the area contribute

significantly to nonattainment in, or interfere with maintenance by,

other nonattainment areas. EPA has authority under sections

110(a)(2)(A) and 110(a)(2)(D) to require such emission reductions if

necessary and appropriate to deal with transport situations.

II. Analysis of Air Quality Data

The EPA has reviewed the ambient air monitoring data for ozone

(consistent with the requirements contained in 40 CFR Part 58 and

recorded in AIRS) for the Lewiston-Auburn ozone nonattainment area and

the Knox and Lincoln Counties ozone nonattainment area in the State of

Maine from 1992 through the present time. On the basis of that review,

EPA has concluded that these areas attained the ozone standard during

the 1992-94 period and continues to attain the standard at this time.

The ozone air quality data for the Lewiston-Auburn ozone nonattainment

area shows no exceedances of the National Ambient Air Quality Standards

since 1992. The ozone air quality data for the Knox and Lincoln

Counties ozone nonattainment area shows only one exceedance of the

National Ambient Air Quality Standards since 1992. Thus, these areas

are no longer recording violations of the air quality standard for

ozone. A more detailed summary of the ozone monitoring data for these

areas is provided in the EPA technical support document dated May 17,

1995.

III. Final Action

EPA determines that the Lewiston-Auburn ozone nonattainment area

and the Knox and Lincoln Counties ozone nonattainment area have

attained the ozone standard and continue to attain the standard at this

time. As a consequence of EPA's determination that the Lewiston-Auburn

area and the Knox and Lincoln Counties area have attained the ozone

standard, the requirements of section 182(b)(1) concerning the

submission of the 15 percent plan and ozone attainment demonstration

and the requirements of section 172(c)(9) concerning contingency

measures are not applicable to the area so long as the area does not

violate the ozone standard.

In addition, Maine currently does not have conforming

transportation improvement programs (TIPs) and transportation plans in

the areas discussed in this notice. The previous conforming TIPs and

plans lapsed because new conformity determinations using EPA's

conformity transitional criteria (40 CFR Sec. 51.448) were required

within one year of November 15, 1993. Because Maine had not submitted

complete 15% plans, it was not able to meet this criteria. Because EPA

is determining in this action that the Lewiston-Auburn area and Knox

and Lincoln Counties area have attained the ozone standard and

therefore are not required to have 15% plans, conformity can be

restored once new conformity determinations by the appropriate

metropolitan planning organizations and the United States Department of

Transportation have been completed using 40 CFR Sec. 51.410. Because

15% plans are no longer required, the state no longer has to meet the

requirements of 40 CFR 51.428, 51.430 and 51.432.

EPA emphasizes that these determinations are contingent upon the

continued monitoring and continued attainment and maintenance of the

ozone NAAQS in these affected areas. If a violation of the ozone NAAQS

is monitored in the Lewiston-Auburn area or the Knox and Lincoln

Counties area (consistent with the requirements contained in 40 CFR

Part 58 and recorded in AIRS), EPA will provide notice to the public in

the Federal Register. Such a violation would mean that the applicable

area would thereafter have to address the requirements of section

182(b)(1) and section 172(c)(9) since the basis for the determination

that they do not apply would no longer exist.

As a consequence of the determinations that these areas in Maine

have attained the ozone standard and that the reasonable further

progress and attainment demonstration requirements of section 182(b)(1)

do not presently apply, the sanctions clock for these two areas started

by EPA on January 26, 1994 for the failure to submit a section

182(b)(1) 15 percent plan and associated contingency plan is hereby

stopped as the deficiency for which the clock was started no longer

exists.

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.

This action will become effective on July 21, 1995. However, if the

EPA receives adverse comments by July 6, 1995, then the EPA will

publish a notice that withdraws the action, and will address those

comments in the final rule on the proposed determination of attainment

and determination of applicability of RFP and attainment demonstrations

which has been proposed for approval in the proposed rules section of

this Federal Register.

This action has been classified as a Table 2 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993

memorandum from Michael H. Shapiro, Acting Assistant Administrator for

Air and Radiation. The Office of Management and Budget exempted this

regulatory action from Executive Order 12866 review.

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 determination does not create any new requirements, but

allows suspension of the indicated requirements. 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.

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,

[[Page 29766]] local, or tribal governments in the aggregate.

EPA's final action does not impose any federal intergovernmental

mandate, as defined in section 101 of the Unfunded Mandates Act, upon

the State. No additional costs to State, local, or tribal governments,

or to the private sector, result from this action, which suspends the

indicated requirements. Thus, EPA has determined that this final action

does not include a mandate that may result in estimated costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector.

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 August 7, 1995. 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)).

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.

Dated: May 22, 1995.

John P. DeVillars,

Regional Administrator, Region I.

Part 52, chapter 1, 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.

2. Subpart U is amended by adding Sec. 52.1023 to read as follows:

Sec. 52.1023 Control strategy: Ozone.

(a) Determination. EPA is determining that, as of July 21, 1995,

the Lewiston-Auburn ozone nonattainment area has attained the ozone

standard and that the reasonable further progress and attainment

demonstration requirements of section 182(b)(1) and related

requirements of section 172(c)(9) of the Clean Air Act do not apply to

the area for so long as the area does not monitor any violations of the

ozone standard. If a violation of the ozone NAAQS is monitored in the

Lewiston-Auburn ozone nonattainment area, these determinations shall no

longer apply.

(b) Determination. EPA is determining that, as of July 21, 1995,

the Knox and Lincoln Counties ozone nonattainment area has attained the

ozone standard and that the reasonable further progress and attainment

demonstration requirements of section 182(b)(1) and related

requirements of section 172(c)(9) of the Clean Air Act do not apply to

the area for so long as the area does not monitor any violations of the

ozone standard. If a violation of the ozone NAAQS is monitored in the

Knox and Lincoln Counties ozone nonattainment area, these

determinations shall no longer apply.

[FR Doc. 95-13812 Filed 6-5-95; 8:45 am]

BILLING CODE 6560-50-P