Approval and Promulgation of Implementation Plans; Maine; NOINFX Exemption Request for Northern Maine and NOINFX Control Approval

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]

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