Designation of Areas for Air Quality Planning Purposes; Correction of Designation of Nonclassified Ozone Nonattainment Areas; States of Maine and New Hampshire

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[ME048-1-6997a; FRL-5802-3]

Designation of Areas for Air Quality Planning Purposes;

Correction of Designation of Nonclassified Ozone Nonattainment Areas;

States of Maine and New Hampshire

AGENCY: United States Environmental Protection Agency (USEPA or

Agency).

ACTION: Direct final rule.

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SUMMARY: The USEPA announces its decision to correct the ozone

designations for the Sullivan and Belknap counties, New Hampshire

nonattainment areas, and the portions of Oxford, Franklin and Somerset

counties in Maine designated nonattainment. The USEPA is publishing the

designation correction of these areas to attainment/unclassifiable for

ozone, pursuant to section 110(k)(6) of the Clean Air Act (the Act),

which allows the USEPA to correct its actions. The rationale for this

approval is set forth in this final rule; additional information is

available at the address indicated below. In the proposed rules section

of this Federal Register, the USEPA is proposing approval of and

soliciting public comment on this action. If adverse comments are

received on this direct final rule, the USEPA will withdraw this direct

final rule and address the comments received in a subsequent final rule

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

rules section of this Federal Register. No additional opportunity for

public comment will be provided. Unless this direct final rule is

withdrawn no further rulemaking will occur on this action.

DATES: This action will be effective May 27, 1997 unless notice is

received by April 28, 1997 that someone wishes to submit adverse

comments. 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 Ecosystems Protection, U.S. Environmental Protection Agency,

Region I, JFK Federal Bldg., (CAA) Boston, MA 02203. Copies of EPA's

technical support document are available for public inspection during

normal business hours, by appointment at: Office of Ecosystems

Protection, U.S. Environmental Protection Agency, Region I, One

Congress Street, 11th floor, Boston, MA; the Bureau of Air Quality

Control, Department of Environmental Protection, 71 Hospital Street,

Augusta, ME 04333; and the New Hampshire Department of Environmental

Services, 64 N. Main St., Concord, NH 03302.

FOR FURTHER INFORMATION CONTACT: Richard P. Burkhart, U.S.

Environmental Protection Agency, Region I, JFK Federal Bldg., (CAQ)

Boston, MA 02203. Phone: 617-565-3578.

SUPPLEMENTARY INFORMATION:

I. Background

1. Background for Sullivan and Belknap Counties, New Hampshire

Pursuant to the 1977 amendments to the Clean Air Act (Act), the

USEPA designated nonattainment areas with respect to the 0.08 parts per

million (ppm) photochemical oxidant National Ambient Air Quality

Standard (NAAQS). For such areas, states submitted State Implementation

Plans (SIPs) to control emissions and achieve attainment of the NAAQS.

In New Hampshire, an area named the Merrimack Valley-Southern New

Hampshire Interstate Air Quality Control Region (AQCR 121) was

designated as nonattainment for photochemical oxidants on March 3, 1978

(43 FR 9013). On February 8, 1979 (44 FR 8202), the USEPA revised the

NAAQS from 0.08 ppm to 0.12 ppm and the regulated pollutant from

photochemical oxidants to ozone. Subsequently, on May 29, 1979, New

Hampshire submitted a revised analysis which considered the change in

the NAAQS and its affect on nonattainment designations (hereinafter

referred to as ``the May 1979, New Hampshire submittal'').

The May 1979, New Hampshire submittal requested that the New

Hampshire portion of the Merrimack Valley-Southern New Hampshire

Interstate AQCR be designated nonattainment, even though the Federal

ozone standard had changed, and there were no ozone monitoring data

from the relevant portions of the AQCR. EPA approved the request on

April 11, 1980 (45 FR 24869). AQCR 121 includes Belknap and Sullivan

counties, along with other areas in both New Hampshire and

Massachusetts whose attainment classification and status will be

unchanged by this technical correction.

The May 1979, New Hampshire submittal was based on the revised

Federal ozone standard of 0.12 ppm. Unfortunately, New Hampshire did

not know the full extent of its ozone nonattainment problems, because,

there were no monitors in either Belknap or Sullivan counties. Ozone

monitors for AQCR 121 existed only in Keene, Manchester, Nashua, and

Portsmouth during the period from 1973 to 1978. These sites did

experience exceedances of the 0.12 ppm standard, but none are close

enough to either Belknap or Sullivan county to indicate their air

quality.

Upon the date of enactment of the 1990 amendments to the Clean Air

Act, the New Hampshire portion of AQCR 121 retained its designation of

nonattainment by operation of law pursuant to section 107(d). Pursuant

to the section 181(a), nonattainment areas were further classified

based on their monitored design value, as marginal, moderate, serious,

severe or extreme. The nonattainment areas in New Hampshire were split

into several

[[Page 14642]]

nonattainment areas and classified as follows: (1) the Portsmouth-

Dover-Rochester area as serious, (2) the New Hampshire portion of the

Boston-Lawrence-Worcester area as serious, (3) the Manchester area as

marginal, and (4) Sullivan, Cheshire and Belknap counties, remained

nonattainment with incomplete data. See 56 FR 56694, November 6, 1991.

2. Background for Portions of Franklin, Oxford and Somerset Counties,

Maine

Pursuant to the 1977 amendments to the Clean Air Act (Act), an area

in Maine named the Androscoggin Valley Interstate Air Quality Control

Region (AQCR 107) was designated as nonattainment for photochemical

oxidants by USEPA. On February 8, 1979 (44 FR 8202), the USEPA revised

the NAAQS from 0.08 ppm to 0.12 ppm and the regulated pollutant from

photochemical oxidants to ozone. Subsequently, on April 19, 1979 Maine

submitted a revised analysis which considered the change in the NAAQS

and its effects on designations (hereinafter referred to as ``the

April, 1979 Maine submittal'').

The April 1979, Maine submittal requested that the Maine portion of

the Androscoggin Valley Interstate AQCR be designated nonattainment,

even though the Federal ozone standard had changed and no ozone

monitoring data existed for the relevant portion of the AQCR. It is

worth noting that Maine retained its own state standard to be 0.08 ppm

ozone not to be exceeded more than once per year.1 The USEPA

approved the request for the AQCR to be designated nonattainment on

February 19, 1980 (45 FR 10766). AQCR 107 includes portions of Oxford,

Somerset and Franklin counties, along with other areas in both Maine

and New Hampshire whose attainment classification and status will be

unchanged by this technical correction.

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\1\ The Maine Legislative has since set Maine's health based

ozone standard to be equivalent to the Federal standard.

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Ambient ozone data for the State of Maine in the 1970's was

severely limited. There were not any monitors in either of the three

counties. An ozone monitor in Maine for AQCR 107 did exist in the Town

of Unity for a short period in 1977. This site did not experience an

exceedance of the 0.12 Federal ppm ozone standard, which is the

applicable standard under the Act for the purposes of designating the

federal attainment status of areas under Section 107.

Upon the date of enactment of the 1990 amendments to the Clean Air

Act, the areas that make up AQCR 107 retained their designation of

nonattainment by operation of law pursuant to section 107(d).

Nonattainment areas were further classified based on their monitored

design value, pursuant to section 181(a), as marginal, moderate,

serious, severe or extreme. The areas in Maine in AQCR 107 were split

up and joined with other areas to form several nonattainment areas

which were classified as follows: the Knox and Lincoln counties area as

moderate, the Lewiston-Auburn area as moderate (which is Androscoggin

and Kennebec counties), the Hancock and Waldo counties area as

marginal, and portions of Oxford, Franklin and Somerset counties,

remained nonattainment with incomplete data. See 56 FR 56694, November

6, 1991.

II. Summary of This Action

Section 110(k)(6) of the Clean Air Act provides the USEPA with the

authority to correct designation determinations made in error.2

The USEPA interprets Section 110(k)(6) to authorize the Agency to make

corrections to a promulgated regulation when it is shown to EPA's

satisfaction that:

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\2\ It states: CORRECTIONS--Whenever the Administrator

determines that the Administrator's action approving, disapproving,

or promulgating any plan or plan revision (or part thereof), area

designation, redesignation, classification, or reclassification was

in error, the Administrator may in the same manner as the approval,

disapproval, or promulgation revise such action as appropriate

without requiring any further submission from the State. Such

determination and the basis thereof shall be provided to the State

and public.

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(1) EPA clearly erred in failing to consider or inappropriately

considered information made available to EPA at the time of the

promulgation; or the information made available at the time of

promulgation is subsequently demonstrated to have been clearly

inadequate; and;

(2) other information persuasively supports a change in the

regulation 57 FR 56763 (November 30, 1992)

The USEPA's earlier action approving the retention of the

nonattainment designations for the Belknap and Sullivan counties in New

Hampshire was in error. That action was based on the State's May 29,

1979 submittal. The USEPA believes that the information submitted by

New Hampshire in the May, 1979 submittal did not provide enough data to

designate these two areas nonattainment for ozone because it did not

contain in-county ozone monitoring data showing violations of the 0.12

ppm NAAQS. Furthermore, in-county monitoring data collected from 1991-

1996 in the Sullivan County nonclassifiable areas do not demonstrate

violations of the 0.12 ppm NAAQS.

The USEPA hereby determines that the information available at the

time of the designation was clearly inadequate, and that the in-county

monitoring data available since the original designation persuasively

support a change in the designations. The USEPA is correcting this

error by correcting the designations for these areas to attainment/

unclassifiable.

Similarly, the USEPA's action approving the retention of the

nonattainment designations for the portions of Oxford, Somerset and

Franklin counties in Maine designated nonattainment was also in error.

The USEPA's action was based on the April 19, 1979 Maine submittal. The

USEPA believes that the information submitted by Maine was insufficient

to designate these three areas nonattainment for ozone because it did

not contain ozone monitoring data showing violations of the 0.12 ppm

NAAQS. Furthermore, in-county monitoring data from 1991-1996 collected

in those counties do not show violations of the 0.12 ppm federal NAAQS.

Since the information available at the time of the designation was

clearly inadequate and in-county monitoring data support a change in

the designations, the USEPA is correcting this error by correcting the

designations for these areas to attainment/unclassifiable.

In order to demonstrate a violation of the ozone NAAQS, the average

annual number of expected exceedances of the NAAQS must be greater than

1.0 per calendar year. (See 40 CFR 50.9.) The USEPA reviewed the basis

of the original ozone designation for these five areas. Ambient air

quality monitoring data for ozone was retrieved from the Aerometric

Information Retrieval System (AIRS). The USEPA found that none of the

five nonattainment nonclassifiable areas in New Hampshire and Maine

ever had ozone monitoring data above 0.12 ppm. More information,

including the AIRS ozone data report for these areas and the Technical

Support Document (TSD), is located in the docket for this rulemaking.

III. Rulemaking Action

Pursuant to section 110(k)(6) of the Clean Air Act (the Act), which

allows the USEPA to correct its actions, the USEPA is promulgating a

correction to the designation status of the Sullivan and the Belknap

counties, New Hampshire nonattainment areas, and the portions of

Oxford, Franklin and Somerset counties in Maine designated

nonattainment. The public should be advised that this action is

effective May

[[Page 14643]]

27, 1997. However, if notice is received by April 28, 1997 that someone

submits adverse or critical comments, this action will be withdrawn,

and a subsequent final rule will be published which will address the

comments received.

The USEPA is publishing a separate document in today's issue of the

Federal Register publication, which constitutes a ``proposed approval''

of the requested SIP revisions and clarifies this rulemaking will not

be deemed final if timely adverse or critical comments are filed. The

``direct final'' approval shall be effective on May 27, 1997, unless

the USEPA receives adverse or critical comments by April 28, 1997.

If the USEPA receives comments adverse to or critical of the

approval discussed above, the USEPA will withdraw this approval before

its effective date by publishing a subsequent Federal Register document

which withdraws this final action. All public comments received will

then be addressed in a subsequent rulemaking notice. Any parties

interested in commenting on this action should do so at this time. If

no such comments are received, the USEPA hereby advises the public that

this action will be effective on May 27, 1997.

IV. Administrative Requirements

A. Executive Order (E.O.) 12866

Under E.O. 12866 (58 FR 51735, Oct. 4, 1993), this action is not a

``significant regulatory action'' and, is therefore not subject to

review by the Office of Management and Budget.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., the

USEPA 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, the USEPA 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. Correction of designation status of these areas to

attainment under section 110(k)(6) of the Clean Air Act does not impose

any new requirements on small entities. Correction of designation

status is an action that affects the status of a geographical area and

does not impose any regulatory requirements on sources. Therefore I

certify that the approval of the redesignation request does not have a

significant impact on a substantial number of small entities.

C. Unfunded Mandates

Under Sections 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, the

USEPA must prepare a budgetary impact statement to accompany any

proposed or final rule that includes a Federal mandate that may result

in estimated costs to State, local, or tribal governments in the

aggregate; or to the private sector, of $100 million or more. Under

Section 205, the USEPA must select the most cost-effective and least

burdensome alternative that achieves the objectives of the rule and is

consistent with statutory requirements. Section 203 requires the USEPA

to establish a plan for informing and advising any small governments

that may be significantly or uniquely impacted by the rule.

The USEPA has determined that this correction action promulgated

does not include a Federal 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. This Federal action

approves pre-existing requirements under State or local law, and

imposes no new requirements. Accordingly, no additional costs to State,

local, or tribal governments, or to the private sector, result from

this action.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996 (SBREFA), the USEPA

submitted a report containing this rule and other required information

to the U.S. Senate, the U.S. House of Representatives and the

Comptroller General of the General Accounting Office prior to

publication of the rule in today's Federal Register. This rule is not a

``major rule'' as defined by 5 U.S.C. 804(2).

E. Petitions for Judicial Review

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 May 27, 1997. 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).) EPA encourages

interested parties to comment in response to the proposed rule rather

than petition for judicial review, unless the objection arises after

the comment period allowed for in the proposal.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Particulate matter, Reporting and

recordkeeping requirements, Sulfur oxides.

Dated: March 19, 1997.

Carol M. Browner,

Administrator.

Part 81 of chapter I, title 40 of the Code of Federal Regulations

is amended as follows:

PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

1. The authority citation of part 81 continues to read as follows:

Authority: 42 U.S.C. 7401--7671q.

2. In Sec. 81.320 the ozone table is amended by revising entries

for ``Franklin County Area'', ``Oxford County Area'', and ``Somerset

County Area'' to read as follows:

Sec. 81.320 Maine.

* * * * *

Maine--Ozone

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Designation Classification

Designated area -----------------------------------------------------------------------------------------------------------------------------------------------------------

Date \1\ Type Date \1\ Type

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Franklin County Area

Franklin County (part).......... May 27, 1997................... Unclassifiable/Attainment

* * * * * * *

Oxford County Area

[[Page 14644]]

Oxford County (part)............ May 27, 1997................... Unclassifiable/Attainment

* * * * * * *

Somerset County Area

Somerset County (part).......... May 27, 1997................... Unclassifiable/Attainment

* * * * * * *

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\1\ This date is November 15, 1990, unless otherwise noted.

* * * * *

2. In Sec. 81.330 the ozone table is amended by revising entries

for ``Belknap County'' and ``Sullivan County'' to read as follows:

Sec. 81.330 New Hampshire.

* * * * *

New Hampshire--Ozone

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Designation Classification

Designated areas -----------------------------------------------------------------------------------------------------------------------------------------------------------

Date \1\ Type Date \1\ Type

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* * * * * * *

Belknap County...................... May 27, 1997................... Unclassifiable/Attainment

* * * * * * *

Sullivan County..................... May 27, 1997................... Unclassifiable/Attainment

* * * * * * *

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\1\ This date is November 15, 1990, unless otherwise noted.

* * * * *

[FR Doc. 97-7628 Filed 3-26-97; 8:45 am]

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