Federal Register / Vol. 79, No. 145 / Tuesday, July 29, 2014 / Rules and Regulations 43945 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by September 29, 2014. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action 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, Hydrocarbons, 

Incorporation by reference, 

Intergovernmental relations, Oxides of 

nitrogen, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

Dated: June 25, 2014. 

Judith A. Enck, 

Regional Administrator, Region 2. 

Part 52, 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 et seq. 

Subpart HH—New York 

■ 2. In § 52.1670 the table in paragraph 

(c) is amended by adding in numeric 

order an entry for Title 6, Part 240 and 

adding subtitles, Subparts 240–1, 240–2 

and 240–3, to read as follows: 

§ 52.1670 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED NEW YORK STATE REGULATIONS AND LAWS

New York State regulation State 

effective date Latest EPA approval date Comments 

Title 6: 

* * * * * * * 

Part 240, Conformity to State or Federal Implementation 

Plans of Transportation Plans, Programs and Projects Developed, Funded or Approved Under Title 23 U.S.C. or 

the Federal Transit Laws.

Subpart 240–1, Transportation Conformity General Provisions.9/13/13 7/29/14, [Insert FEDERAL REGISTER citation].

Subpart 240–2, Consultation .................................................. 9/13/13 7/29/14, [Insert FEDERAL REGISTER citation].

Subpart 240–3 Regional Transportation-Related Emissions 

and Enforceability.

9/13/13 7/29/14, [Insert FEDERAL REGISTER citation].

* * * * * * * 

* * * * * 

[FR Doc. 2014–17659 Filed 7–28–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R01–OAR–2012–0895; A–1–FRL– 

9913–56–OAR] 

Approval and Promulgation of Air 

Quality Implementation Plans; Maine; 

Nitrogen Oxides Exemption Request 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving a request 

from Maine for an exemption from the 

requirements for the control of nitrogen 

oxides (NOX) emissions contained in 

section 182(f) of the Clean Air Act (CAA 

or Act) in relation to the 2008 8-hour 

ozone national ambient air quality 

standards (standards or NAAQS). 

Maine’s request, dated October 13, 2012, 

is based on a technical demonstration 

submitted to EPA by Maine’s 

Department of Environmental Protection 

(ME DEP) showing that NOX emissions 

in Maine are not having a meaningful 

adverse impact on the ability of any 


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43946 Federal Register / Vol. 79, No. 145 / Tuesday, July 29, 2014 / Rules and Regulations 

1The term ‘‘high ozone days’’ refers to days when 

the ozone standard is exceeded. The 2008 ozone 

NAAQS is based on a three-year average of the 

fourth-highest 8-hour average yearly concentration. 

When an ozone monitor ‘‘exceeds’’ the level of the 

NAAQS (0.075 ppm or 75 ppb) it is commonly 

referred to as an exceedance day. 

2 ‘‘Guidance on Limiting Nitrogen Oxides 

Requirements Related to 8-Hour Ozone 

Implementation,’’ January 2005. 

nonattainment areas located in the 

Ozone Transport Region (OTR) to attain 

the ozone standards during times when 

elevated ozone levels are monitored in 

those areas. Specifically, Maine 

analyzed the nearest of these areas (i.e., 

the nonattainment areas in 

Massachusetts and Connecticut). Based 

on EPA’s review of this technical 

demonstration, and other relevant 

information, we conclude that any 

additional reductions in NOX emissions 

in the State of Maine that would be 

required under the 2008 8-hour ozone 

standards, and which would be beyond 

what Maine’s State Implementation Plan 

(SIP) regulations already provide for, 

would not produce net ozone air quality 

benefits in the OTR. Thus, EPA has 

determined that those emissions 

reductions may be exempted under the 

Act. 

DATES: This rule is effective on August 

28, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R01–OAR– 

2012–0895. All documents in the docket 

are listed on the www.regulations.gov 

Web site. Although listed in the index, 

some information is not publicly 

available, i.e., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Office of Ecosystem Protection, U.S. 

Environmental Protection Agency, EPA 

New England Regional Office, One 

Congress Street, Suite 1100, Boston, 

MA. EPA requests that if at all possible, 

you contact the contact listed in the FOR

FURTHER INFORMATION CONTACT section 

immediately following this paragraph to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 a.m. to 

4:30 p.m., excluding legal holidays. 

Copies of the documents relevant to this 

action are also available for public 

inspection during normal business 

hours, by appointment at the State Air 

Agency: Bureau of Air Quality Control, 

Department of Environmental 

Protection, First Floor of the Tyson 

Building, Augusta Mental Health 

Institute Complex, Augusta, ME 04333– 

0017. 

FOR FURTHER INFORMATION CONTACT: 

Richard Burkhart, Air Quality Planning 

Unit, U.S. Environmental Protection 

Agency, EPA New England Regional 

Office, 5 Post Office Square, Suite 100, 

Boston, MA 02109–3912, telephone 

number (617) 918–1664, fax number 

(617) 918–0664, email 

Burkhart.Richard@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

The information presented in this 

action is organized as follows: 

I. Background 

II. What action is EPA taking? 

III. Response to Comments 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. Background 

On August 5, 2013 (78 FR 47253), 

EPA published a Notice of Proposed 

Rulemaking (NPR) for the State of 

Maine. In the NPR, EPA proposed to 

approve Maine’s request for a state-wide 

exemption from the CAA section 182(f) 

NOX control requirements. The ME DEP 

submitted the request to EPA on 

October 13, 2012. 

In the NPR, EPA also proposed 

approval of a CAA section 176A request 

from Maine to restructure the 

requirements of the OTR for all of Maine 

and proposed to amend the Maine SIP 

accordingly. The ME DEP submitted its 

restructuring request on February 11, 

2013, and supplemented its submittal 

on November 18, 2013. Specifically, 

Maine requested that EPA approve a 

‘‘limited opt-out’’ or ‘‘restructuring’’ of 

the Act’s OTR requirements pertaining 

to nonattainment New Source Review 

(NSR) permitting requirements 

applicable to major new and modified 

stationary sources of volatile organic 

compounds (VOC). EPA is not taking 

final action on the proposed approval of 

Maine’s CAA section 176A request or 

the related proposed SIP changes at this 

time. 

II. What Action is EPA taking? 

EPA is approving the State of Maine’s 

request for an exemption from the NOX

requirements contained in Section 

182(f) of the CAA for the entire State of 

Maine. CAA section 182(f) makes 

certain requirements that apply to major 

sources of volatile organic compounds 

(VOC) also applicable to major 

stationary sources of NOX emissions. 

This section also gives the 

Administrator authority to exempt NOX

emission sources from those 

requirements. Through this action the 

Administrator is granting such an 

exemption with respect to the 2008 

ozone NAAQS for the State of Maine. 

The specific requirements that would 

otherwise apply are (1) the requirement 

to implement pollution controls meeting 

reasonably available control technology 

(RACT) for emissions of NOX; and (2) 

the nonattainment area new source 

review (NSR) permitting requirements 

for major new and modified sources as 

they apply to emissions of NOX. EPA is 

approving this request pursuant to CAA 

section 182(f)(1)(B), which provides the 

applicable test for granting such 

exemptions for nonattainment areas in 

the Ozone Transport Region (OTR) (as 

well as for attainment areas in the OTR). 

When evaluating how Maine’s request 

meets the ‘‘net ozone air quality benefit’’ 

test in section 182(f)(1)(B) of the CAA, 

EPA considered a variety of factors: (1) 

Maine’s unique position at the northern 

extremity of the OTR and the 

phenomenon that on high ozone days 1

in nearby nonattainment areas the 

prevailing winds typically flow from the 

southwest towards Maine; (2) our 2005 

NOX exemption guidance 2 which 

indicates that the ‘‘net ozone air quality 

benefit’’ test may be applied in 

attainment areas within the OTR; (3) 

Maine’s back-trajectory technical 

analysis and EPA’s photochemical grid 

modeling; (4) the language of section 

182(f) of the CAA and important related 

CAA provisions; and (5) information 

provided by the public, and the State of 

Maine, in response to our notice of 

proposed rulemaking. These factors, 

which are discussed in more detail in 

the response to comments below, show 

that Maine is downwind of nearby areas 

when they experience ozone 

concentrations above the standard, none 

of the back-trajectories associated with 

ozone concentration days above the 

standard for nearby nonattainment areas 

pass through Maine, and modeling data 

indicate that Maine’s impact on 

nonattainment areas in the OTR is so 

small as to be not meaningful. For all of 

these reasons, EPA believes that NOX

emission reductions required under 

section 182(f) absent a NOX exemption 

would not produce any meaningful 

ozone benefits in OTR areas that are not 

attaining the 2008 ozone standard; we 

therefore conclude that Maine’s 

technical demonstration and the other 

information we evaluated satisfy the 

requirements of the ‘‘net ozone air 

quality benefits’’ test. If EPA 

subsequently determines, based on 

future air quality analyses, that such 

NOX emissions controls in Maine are 

necessary to meet the requirements of 


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Federal Register / Vol. 79, No. 145 / Tuesday, July 29, 2014 / Rules and Regulations 43947 

3The 2008 ozone NAAQS is based on a three-year 

average of the fourth-highest 8-hour average yearly 

concentration. This value is called the design value. 

If the design value is less than or equal to 0.075 

ppm (the level of the 2008 ozone NAAQS) the area 

is meeting the 2008 ozone NAAQS. An ozone 

monitor can ‘‘exceed’’ the level of the NAAQS 

(0.075 ppm or 75 ppb) on average three times a year 

and still ‘‘meet’’ the 2008 ozone NAAQS. Any one 

monitor with a design value above the level of the 

NAAQS is not meeting the NAAQS. 

the CAA, EPA may initiate rulemaking 

to revoke the NOX exemption being 

approved in relation to the 2008 ozone 

NAAQS. 

III. Response to Comments 

EPA received both supportive and 

adverse comments on its August 5, 2013 

NPR. The comments received that relate 

to Maine’s CAA section 182(f) NOX

exemption request, and EPA’s responses 

to those specific comments, are set forth 

below. As noted above, EPA is not 

taking action on Maine’s OTR 

restructuring request relating to 

nonattainment NSR applicable to VOC 

emissions and this notice, therefore, 

does not address public comments 

received on that aspect of EPA’s August 

5, 2013 NPR. Any final action on EPA’s 

proposed approval of Maine’s OTR 

restructuring request for VOC NSR will 

be taken separately. Public comments 

received on our August 5, 2013 NPR 

that pertained to Maine’s OTR VOC NSR 

restructuring request will be addressed 

at that time. 

Comment #1: Several commenters 

mentioned that Maine’s air quality data 

is near the existing ozone NAAQS. One 

or more commenters stated that 

preliminary 2013 ozone data show that 

coastal Maine’s design value is 75 parts 

per billion (ppb) [0.075 parts per million 

(ppm)] and within a small margin of 

failing to meet the NAAQS. Several 

commenters directly stated or implied 

that they expect ozone levels in Maine 

will increase if EPA approves Maine’s 

NOX exemption request. 

Response #1: The ME DEP runs an 

extensive network of ozone monitors 

throughout the State of Maine. In 

addition, there are three ozone monitors 

run by tribes in Maine and two ozone 

monitors at CASTNET (Clean Air Status 

and Trends Network) sites. All ozone 

data for monitoring sites in Maine meet 

the 2008 ozone NAAQS. The design 

values 3 for ME DEP’s ozone monitors, 

based on 2010–2012 quality-assured, 

certified ozone data, are shown in Table 

1 below (Maine’s ozone data are 

available in the EPA Air Quality System 

(AQS) air quality database and in the 

EPA airdata database at http://

www.epa.gov/airdata/ad_rep_

mon.html). Final 2013 ozone data and 

preliminary 2011–2013 design values 

are also shown. The 2013 data are also 

in AQS, and have been certified. 

TABLE 1—MAINE OZONE DATA 4TH HIGH VALUES AND DESIGN VALUES (DV) 

Site location County Monitor type AIRS ID # 

4th 

High 

2010 

4th 

High 

2011 

4th 

High 

2012 

4th 

High 

2013 

2010 to 

2012 

DV 

2011 to 

2013 

DV 

Bar Harbor—McFarland 

Hill.

Hancock .......................... NCore ........... 230090103 0.070 0.066 0.060 0.069 0.065 0.065 

Bar Harbor—Cadillac Mtn. Hancock .......................... SLAMS ......... 230090102 0.076 0.074 0.066 0.068 0.072 0.069 

Bowdoinham .................... Sagadahoc ...................... SPMS ........... 230230006 0.061 0.061 0.062 0.061 0.061 0.061 

Cape Elizabeth ................ Cumberland ..................... SLAMS ......... 230052003 0.072 0.070 0.066 0.072 0.069 0.069 

Durham ............................ Androscoggin .................. SPMS ........... 230010014 0.058 0.063 0.061 0.059 0.060 0.061 

Gardiner ........................... Kennebec ........................ SLAMS ......... 230112005 0.059 0.063 0.064 0.065 0.062 0.064 

Holden .............................. Penobscot ....................... SLAMS ......... 230194008 0.059 0.055 0.058 0.064 0.057 0.059

Jonesport ......................... Washington ..................... SPMS ........... 230290019 0.061 0.057 0.057 0.062 0.058 0.058 

Kennebunkport ................. York ................................. SLAM ........... 230312002 0.072 0.073 0.077 0.076 0.074 0.075

North Lovell ...................... Oxford .............................. SPMS ........... 230173001 0.054 0.054 0.056 0.052 0.054 0.054 

Port Clyde ........................ Knox ................................ SLAM ........... 230130004 0.070 0.068 0.062 0.076 0.066 0.068 

Portland ............................ Cumberland ..................... SPM/NR ....... 230050029 0.060 0.060 0.065 0.061 0.061 0.062 

Shapleigh ......................... York ................................. SPMS ........... 230310040 0.066 0.064 0.065 0.064 0.065 0.064 

West Buxton .................... York ................................. SPMS ........... 230310037 0.058 0.059 0.065 0.063 0.060 0.062 

All data in parts per million (ppm) ozone—2013 ozone design values are preliminary. 

NCore: National Core. 

SLAMS: State and Local Air Monitoring Station. 

SPMS: Special Purpose Monitoring Station. 

SPM/NR: Special Purpose Monitor/Non-Regulatory. 

As has always been the case in Maine, 

the ozone monitors with the highest 

design values are located on the coast 

(i.e., Kennebunkport, Cape Elizabeth, 

Portland, Port Clyde, Bar Harbor and 

Jonesport). 

ME DEP received similar comments, 

during its state public comment period, 

asserting that if a NOX exemption is 

granted by EPA the effect would be to 

exacerbate current air quality in Maine; 

to address these comments, ME DEP 

prepared a technical analysis 

supplementing its original analysis, and 

submitted that additional analysis to 

EPA as part of its November 18, 2013 

submittal supplementing its original 

submittal. ME DEP’s analysis tracks the 

origin of the ozone precursor pollutants 

(NOX and VOC) on days when the 2008 

NAAQS is exceeded. Maine is at the end 

of the ozone ‘‘pipeline’’ in the OTR, and 

thus receives ozone transported from 

points to the south, such as from the 

Greater Boston area, the large cities 

along coastal Connecticut and from the 

New York City area. These pollutants 

are transported into Maine on southerly 

and south-westerly winds, the only 

wind direction that results in ozone 

levels in Maine that exceed the 2008 

ozone NAAQS. 

Furthermore, Maine did not request to 

discontinue or remove from its SIP any 

existing NOX pollution controls. That is, 

all existing sources still will be required 

to comply with currently applicable 

NOX pollution control requirements to 

which they were subject prior to EPA’s 

action approving Maine’s NOX

exemption request. Specifically, the 

NOX control requirements contained in 

Chapters 138, 145 and 148 of ME DEP 

Regulations (‘‘Reasonably Available 

Control Technology For Facilities That 

Emit Nitrogen Oxides (NOX-RACT),’’ 

‘‘NOX Control Program,’’ and 

‘‘Emissions from Smaller-Scale Electric 

Generating Facilities’’) will remain in 

Maine’s SIP. And for major new and 

modified stationary sources of NOX, 


rmajette on DSK2TPTVN1PROD with RULES2
43948 Federal Register / Vol. 79, No. 145 / Tuesday, July 29, 2014 / Rules and Regulations 

4 ‘‘Roughness length’’ is a measure of surface 

roughness, oceans are smooth with a low roughness 

length, while forests are rough with a high 

roughness length. 

Maine’s Prevention of Significant 

Deterioration (PSD) permitting 

requirements will now apply in lieu of 

the nonattainment NSR permitting 

requirements. Outside of the OTR, PSD 

permitting requirements typically apply 

in areas attaining the NAAQS. All of 

Maine is now attaining the ozone 

NAAQS, and ME DEP’s technical 

demonstration supporting its NOX

exemption request shows that Maine’s 

emissions are not having a meaningful 

adverse impact on the ability of any 

nonattainment areas in the OTR to 

attain the ozone NAAQS. The basis of 

Maine’s conclusion was a detailed 

analysis of all of the ozone exceedances 

in the nearest of these areas (i.e., the 

nonattainment areas in Massachusetts 

and Connecticut). 

Moreover, it is important to note that, 

as explained in EPA’s August 5, 2013 

NPR, EPA’s approval of this NOX

exemption is not the first time that EPA 

has granted a NOX exemption under 

CAA section 182(f) to Maine. On 

December 26, 1995 (60 FR 66748), EPA 

approved the State of Maine’s section 

182(f) NOX exemption request for 

counties in northern and downeast 

Maine which were attaining the 1-hour 

ozone NAAQS applicable at that time 

(specifically, Aroostook, Franklin, 

Oxford, Penobscot, Piscataquis, 

Somerset, Washington, Hancock and 

Waldo Counties). In addition, on 

February 3, 2006 (71 FR 5791), EPA 

approved a section 182(f) NOX

exemption request for a similar area in 

Maine (specifically, Aroostook, 

Franklin, Oxford, Penobscot, 

Piscataquis, Somerset, Washington, and 

portions of Hancock and Waldo 

Counties) in relation to the 1997 8-hour 

ozone NAAQS. Thus, since December 

1995 all of the major stationary sources 

of NOX in these areas have not been 

subject to the nonattainment NSR 

permitting requirements that are 

applicable throughout the OTR. Sources 

in these areas have throughout that 

period of time been covered by Maine’s 

PSD regulations, and will continue to be 

so covered under EPA’s approval of this 

NOX exemption request. 

Comment #2: One commenter 

requested that EPA and Maine examine 

ozone data from Appledore Island and 

other ‘‘research ozone monitors.’’ In 

addition, the commenter requested that 

Maine examine ozone data at the now 

discontinued Small Point ozone monitor 

and discontinued ozone monitor in 

Pownall, Maine. Another commenter 

noted that ‘‘[g]iven the nature and 

limitations of monitoring, it is fair to say 

that other locations are likely to be 

above the current 75 ppb [0.075 ppm] 

standard but simply haven’t been 

identified.’’ 

Response #2: As stated in the 

response to comment #1 above, there is 

an extensive ozone monitoring network 

operated in the State of Maine by a 

number of entities. For a variety of 

reasons, ME DEP runs more ozone 

monitors than minimally required under 

EPA regulations at 40 CFR Part 58, 

Appendix D. This is especially true in 

southern Maine and along the entire 

coastline, where Maine records its 

highest levels of ozone. For example, 

EPA regulations require the State of 

Maine to run a minimum of two ozone 

monitors in the Portland-South 

Portland, Maine Metropolitan Statistical 

Area (MSA), which comprises the 

counties of Cumberland, Sagadahoc and 

York. ME DEP currently runs six ozone 

monitors in this MSA, with a mix of 

monitors along the coast and some 

monitors located more inland. As stated 

earlier, all current Maine ozone sites in 

the AQS data base (see Table 1, above) 

are monitoring air quality that meets the 

2008 ozone NAAQS. In addition, all 

New Hampshire ozone sites in the AQS 

data base also monitor air quality that 

meets the 2008 ozone NAAQS. In fact, 

all of Maine and all of New Hampshire 

are designated as attainment/

unclassifiable for the 2008 ozone 

NAAQS (see 40 CFR 81.320 and 81.330), 

the best/cleanest classification. 

With regard to ozone monitoring data 

at Appledore Island off the coast of New 

Hampshire, the University of New 

Hampshire did operate a research data 

ozone monitor on this island for a 

number of years. The data is available 

at: www.eos.unh.edu/observatories/

data.shtml. The Appledore monitor was 

shut down in March 2012, so the latest 

three years available to analyze from 

that monitor for the ozone season are 

the years 2009–2011. An analysis of that 

data by the ME DEP shows that the 4th 

highest daily maximum concentrations 

for each year were 0.075 ppm, 0.068 

ppm and 0.070 ppm, respectively, 

resulting in a design value of 0.071 

ppm, which is below the 2008 ozone 

NAAQS. 

The Pownal, Maine ozone monitoring 

site was in operation only during the 

1980 through 1983 ozone seasons. 

Pownal is an inland ozone monitoring 

site and, as is the case for all inland 

ozone monitoring sites, historically had 

lower maximum ozone values than 

nearby coastal sites. An analysis of 

historic ozone data by the ME DEP 

shows the 4th highest daily maximum 

8-hour ozone concentration in 1983 at 

the Pownal site was on the order of 0.02 

ppm ozone lower (based on the 4th 

highest daily maximum 8-hour 

concentration) than the coastal sites in 

Kennebunkport and Cape Elizabeth, 

respectively. Even though these data are 

quite old, they confirm the observation 

that ozone concentrations at inland sites 

in Maine are much lower than at coastal 

sites during periods of high ozone. 

During ozone episodes in Maine, ozone 

plumes which originate from the large 

upwind urban areas of Boston and 

Providence are advected over the Gulf of 

Maine (the North Atlantic) by the wind, 

and then inland into coastal Maine. 

Once ashore, the ozone concentrations 

are quickly reduced, most likely by two 

methods. The first reduction method is 

the increase in mixing height over the 

land, as opposed to over the cold North 

Atlantic. The increase in mixing height, 

both because of the roughness length 4

of the land as opposed to the ocean (i.e., 

the land has hills, trees and buildings 

which cause a resistance for the winds; 

the relatively smooth ocean does not, 

and the increase in resistance, 

roughness, causes the mixing height to 

increase), and the warmer land being 

able to support a higher boundary layer 

mixing height, help to dilute ozone 

levels and thus lower ozone 

concentrations. In addition, ozone 

scavenging (the process whereby ozone 

is converted into oxygen, a nonpollutant) by the land-cover vegetation 

of trees, shrubs and grasslands helps to 

lower ozone concentrations. The result 

of these processes is lower ozone 

concentrations inland in Maine and 

higher concentrations along the coast. 

Since ozone in Maine is highest along 

the coast, Maine has put many of its 

ozone monitors in coastal locations. 

The Small Point monitoring site in 

Phippsburg, Maine was in operation 

only during the 1994–2000 ozone 

seasons. This site is in Sagadahoc 

County, which is part of the PortlandSouth Portland, Maine Metropolitan 

Statistical Area. The Small Point 

monitor was at a coastal location. An 

analysis by the ME DEP of the historic 

ozone data during that time period 

shows that there was only a single year, 

1996, when the Small Point 

(Phippsburg) site had the highest 4th 

high maximum daily 8-hour ozone 

concentration among coastal monitoring 

sites in Maine. The highest site during 

other years was at the Kennebunkport 

site in 1994 and 1995, at the Cape 

Elizabeth site in 1997, and at the 

Cadillac Mountain Summit site in 1998, 

1999 and 2000. Depending on the 

transport pattern at a particular time, 


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5An ozone monitor can ‘‘exceed’’ the level of the 

NAAQS (0.075 ppm or 75 ppb) on average three 

times a year and still ‘‘meet’’ the 2008 ozone 

NAAQS. Any one monitor with a design value 

above the level of the NAAQS is not meeting the 

NAAQS. Since Maine has many monitors it is likely 

and common that different monitors record 

exceedances on different days. This is one way 

Maine can have 5 ‘‘exceedance’’ days and still not 

violate the level of the ozone NAAQS. The other is 

that in one very hot year Maine can have 5 

exceedance days, but have only one or two 

exceedance days in the two other years that are 

included in the calculation of the three-year average 

design value. 

the peak ozone concentration can occur 

anywhere along Maine’s southwest and 

mid-coast regions, but the southern sites 

are most likely to show the highest 

concentrations. 

As stated earlier, ME DEP runs more 

ozone monitors in the Portland-South 

Portland, Maine MSA than is required 

by EPA’s minimum ozone monitoring 

requirements at 40 CFR Part 58, 

Appendix D. Maine’s entire ozone 

monitoring network is described in its 

2014 Annual Air Monitoring Plan. (See 

www.maine.gov/dep/air/monitoring/

docs/Air%20Monitoring%20Plan.pdf.) 

This annual air monitoring plan is 

required to be submitted to EPA 

annually for review and approval after 

being subjected to a 30-day public 

comment period. Maine’s most recent 

plan was posted for public comment on 

May 31, 2013, and was then submitted 

to EPA for review on July 1, 2013. EPA 

approved Maine’s plan as a final action 

on August 6, 2013 and does not believe 

there exist any gaps in ozone monitoring 

coverage along Maine’s coast. 

Comment #3: Several commenters 

discuss Maine’s ozone air quality and 

refer to it as poor and/or unhealthy. 

They cite high asthma rates and other 

lung ailments. For example, one 

commenter states: ‘‘[i]t is a troubling 

fact that Mainers continue to suffer from 

smog pollution from in-state and crossborder pollutants, especially in the 

summer. Maine’s Department of Health 

and Human Services (DHHS) reports 

that Maine has some of the highest rates 

of asthma in the country, with 

approximately 10% of Maine adults and 

10.7% of children suffering from 

asthma. According to the American 

Lung Association’s 2013 ‘‘State of the 

Air’’ report, hundreds of thousands of 

Maine residents suffer from smog 

pollution, including more than 23,000 

children and 127,000 adults with 

asthma; nearly 84,000 with COPD; 

377,000 with cardiovascular disease; 

and nearly 103,000 with diabetes. In 

addition, more than 269,000 young 

people under age 18 and 216,000 

seniors in Maine are especially 

vulnerable to harmful health impacts of 

smog pollution. Given the on-going 

health threat of smog pollution to Maine 

families, we believe that it would be a 

serious mistake to weaken the state’s 

ability to control sources of smog 

pollutants.’’ 

Another commenter states that one 

half of Maine’s counties have unhealthy 

air quality. Several commenters also 

state that Maine’s ozone air quality is 

getting worse, not better. 

Response #3: The primary ozone 

NAAQS (0.075 ppm on an 8-hour 

average basis) was established by EPA 

in 2008 to protect public health with an 

adequate margin of safety. As stated 

earlier, all of Maine’s air quality meets 

the 2008 ozone NAAQS and all of 

Maine is designated attainment/

unclassifiable for the 2008 ozone 

NAAQS (40 CFR 81.320). See Response 

#1 and Table 1, above. In addition, 

ozone trends in Maine show improving 

air quality. For example, EPA AQS 

ozone data show that in 1983 there were 

30 days on which the 2008 ozone 

NAAQS was exceeded 5 in Maine. By 

1993, the number of days on which the 

ozone NAAQS was exceeded had 

dropped to 20, and by 2003 that number 

was 15. In 2013, preliminary ozone data 

show only 5 days on which the 2008 

ozone NAAQS was exceeded in Maine. 

Maine has also seen a significant 

reduction in its 8-hour ozone design 

values over the last 30 years. For 

example, the 8-hour ozone design 

values for Cumberland County for the 

1983–1985, 1991–1993, 2001–2003, and 

2011–2013 time periods are 0.116 ppm, 

0.098 ppm, 0.088 ppm, and 0.069 ppm, 

respectively. Similarly, the 8-hour 

ozone design values for York County for 

the same time periods are 0.115 ppm, 

0.102 ppm, 0.091 ppm, and 0.075 ppm, 

respectively. Due primarily to emission 

reductions upwind of Maine, EPA 

expects this improving ozone air quality 

trend to continue in Maine. 

As noted in Maine’s request, NOX

emissions in Maine have been reduced 

over the past 10 years, and this trend is 

expected to continue. This trend has 

been demonstrated by a number of SIP 

revisions submitted by ME DEP and 

approved by EPA in recent years. In 

those SIP submittals, Maine has shown 

that NOX emissions across the state will 

continue to decrease into the future as 

a result of the implementation of a 

variety of state and federal control 

strategies, none of which are affected by 

Maine’s section 182(f) NOX exemption 

being approved by EPA. Examples of 

this are the Ozone Redesignation and 

Maintenance Plans for: (1) Portland, 

Maine; and (2) Hancock, Knox, Lincoln 

and Waldo Counties, each approved by 

EPA on December 11, 2006 (71 FR 

71489). In the state’s maintenance plans 

for these areas, ME DEP projected that 

typical summer day NOX emissions in 

Cumberland, Hancock, Knox, Lincoln, 

Sagadahoc, Waldo, and York Counties 

(the same counties affected by the 

expansion of Maine’s previously 

approved section 182(f) NOX

exemptions) would decrease by 42.5% 

between 2005 and 2016. Another 

example is Maine’s Regional Haze Plan 

approved by EPA on April 24, 2012 (77 

FR 24385). In that plan, Maine projected 

that annual NOX emissions across the 

entire state would decrease by 52.7% 

between 2002 and 2018. EPA’s August 

5, 2013 NPR for Maine’s NOX exemption 

request explains that granting the NOX

exemption will only result in rendering 

inapplicable any additional NOX

reduction requirements that would be 

required pursuant to the 2008 ozone 

NAAQS and which would be beyond 

already existing pollution control 

requirements. 

Comment #4: Several commenters 

noted that the Clean Air Scientific 

Advisory Committee (CASAC) has 

recommended a tighter ozone standard 

which, if promulgated, would put much 

of coastal Maine into ozone 

nonattainment. 

Response #4: EPA is required by the 

CAA to evaluate and act on Maine’s 

NOX exemption request as it applies to 

the current ozone NAAQS, the ozone 

standards EPA promulgated in 2008. 

Section 182(f) of the CAA does not 

contain NOX exemption evaluative 

criteria relating to NAAQS that may be 

promulgated in the future. However, if 

EPA were to revise the ozone NAAQS 

in the future, EPA would evaluate 

Maine’s ozone data at that time and 

make appropriate decisions regarding 

attainment and nonattainment in Maine 

during the designation process. If EPA 

in the future designates a portion of 

Maine as nonattainment under a revised 

ozone NAAQS, that area would 

automatically be subject to 

nonattainment new source review (NSR) 

and RACT for NOX, independent of 

whether or not EPA approves Maine’s 

NOX exemption request for the 2008 

ozone NAAQS. As noted in EPA’s 

implementation rule for the 1997 ozone 

NAAQS (69 FR 23951, April 30, 2004) 

and in EPA’s proposed implementation 

rule for the 2008 ozone NAAQS (78 FR 

34178, June 6, 2013), a NOX exemption 

request must be submitted to EPA by a 

state with respect to a specific ozone 

NAAQS and must be re-submitted for 

each subsequent ozone NAAQS. Thus, if 

EPA does revise the ozone NAAQS in 

the future, we would expect that Maine 

would be required to submit a new 

request for a NOX exemption for the 

revised ozone NAAQS were Maine to 


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determine that a NOX exemption should 

continue in any portion of the state. 

Comment #5: Certain commenters 

asserted that, notwithstanding Maine’s 

air trajectory analysis, EPA’s Cross State 

Air Pollution Rule (CSAPR) modeling 

shows that Maine significantly 

contributes to nonattainment, and 

interferes with maintenance of the 2008 

ozone NAAQS. For example, CSAPR 

source apportionment modeling for the 

ozone monitor in Barnstable County, 

Massachusetts shows that Maine’s 

contribution to that monitor is greater 

than 1% of the 2008 ozone NAAQS (i.e., 

1.217 ppb). 

The commenters further asserted that, 

although CSAPR focused on the 0.08 

ppm ozone NAAQS, had CSAPR 

focused on the 0.075 ppm 2008 NAAQS, 

Maine would have been identified at 

that time as a significant contributor of 

ozone-related pollutants to Barnstable 

County, Massachusetts. That is because, 

the commenters assert, the Barnstable 

County ozone monitor would have been 

identified as having attainment and 

maintenance problems in relation to a 

0.075 ppm standard (i.e., at a level of 

76.7 ppb). 

The commenters further assert that 

the Barnstable County monitor has a 

current design value (DV) of 0.075 ppm 

(based upon 2010–2012 certified data), 

which is right at the level of the 2008 

ozone NAAQS. An ozone monitor’s DV 

consists of the 3-year average of the 4th 

highest ozone concentrations in each of 

the three years, at that monitor, which, 

for the Barnstable County monitor were 

78 ppb (2010), 68 ppb (2011), and 79 

ppb (2012), respectively. While the 

Barnstable County monitor is currently 

monitoring attainment, two of those 

three years were well above attainment 

levels for the 2008 ozone NAAQS. Thus, 

the commenters assert, this indicates 

that EPA’s CSAPR modeling was 

correct, and that Barnstable does have 

an attainment/maintenance problem in 

relation to the 2008 ozone NAAQS. 

Thus, the commenters conclude that the 

CSAPR modeling indicates that Maine’s 

emissions significantly contribute to 

ozone attainment/maintenance 

problems in Massachusetts. 

The commenters continue by stating 

that Maine’s back trajectory analysis is 

incomplete because it only considered 

nearby nonattainment areas in 

Connecticut and Massachusetts, and did 

not consider areas that are currently 

designated attainment that have been 

nonattainment in the past (i.e., 

maintenance areas). They further assert 

that EPA modeling from the Clean Air 

Interstate Program (2005) and CSAPR 

(2011) shows that Maine has a 0.3 ppb 

nonattainment area impact on ozone 

levels in Massachusetts and a 0.141 ppb 

impact in Connecticut. Any reduction in 

controls, in Maine, the commenters 

assert, will result in greater adverse 

ozone impacts in these areas. 

Response #5: The modeling 

conducted by EPA to support the 

development of the Clean Air Interstate 

Rule (CAIR) and CSAPR is not directly 

relevant to our analysis of Maine’s 

request for a NOX waiver under section 

182(f), because neither modeling 

analysis directly addresses ozone 

contribution with respect to the 2008 

ozone standard. The CAIR modeling 

was conducted to analyze interstate 

transport with respect to the 1997 ozone 

and 1997 PM2.5 NAAQS and the CSAPR 

modeling was conducted to analyze 

interstate transport with respect to the 

1997 ozone and the 1997 annual PM2.5

and the 2006 24-hour PM2.5 NAAQS. 

Thus, neither modeling analysis 

provides information on downwind 

areas that will have difficulty attaining 

or maintaining the 2008 ozone standard, 

or on upwind areas that contribute to 

those problems. Nevertheless, it is 

informative that the CSAPR modeling 

shows a very small contribution from 

Maine to nonattainment sites (relative to 

the 1997 ozone standard) in the OTR. 

The CSAPR modeling does strongly 

suggest that Maine’s ozone impact on 

these areas is not meaningful. (EPA’s 

response to comment #8 below 

discusses issues related to Maine’s 

ozone impact in greater detail). 

In addition, it is important to note 

that Barnstable County, Massachusetts 

is designated attainment for the 2008 

ozone NAAQS (see 40 CFR 81.320). 

Also, 2010–2012 quality-assured, 

certified ozone data (available in EPA’s 

AQS database) for the Truro, 

Massachusetts ozone monitor (the ozone 

monitor in Barnstable County) meets the 

ozone NAAQS. As the commenter 

noted, the design value for this monitor 

for this period is 0.075 ppm. The 

preliminary AQS ozone data for 2013 

also meets the NAAQS (design value 

period 2011–2013). The preliminary 

design value at Truro for 2011–2013 is 

0.073 ppm. Thus, for purposes of 

evaluating Maine’s request for a NOX

waiver, EPA has decided it is 

appropriate to treat Barnstable County, 

Massachusetts as an attainment area. 

Furthermore, the Maine DEP has 

undertaken, and EPA has reviewed, an 

additional analysis of the elevated 

ozone levels recorded at the Truro 

ozone monitor. The ME DEP generated 

back trajectories for all days during 2008 

to 2012 that the Truro monitor showed 

an exceedance, with final AQS data, of 

the 2008 ozone NAAQS, at the Truro 

ozone monitor. ME DEP also generated 

back trajectories for days during 2013 

for which preliminary AQS ozone data 

showed an exceedance at the Truro 

monitor. In all, there were back 

trajectories generated by the ME DEP for 

18 separate days, and the trajectories 

show that on those exceedance days the 

air parcels do not originate or traverse 

any part of Maine. This trajectory 

analysis does not show any meaningful 

ozone contribution from Maine to the 

Truro site on days conducive to ozone 

exceedances in Truro, for the period 

2008 to 2013. 

Comment #6: One commenter states 

that Maine’s submission to EPA 

indicates that the state’s VOC and NOX

emissions are of small magnitude 

compared to other OTR states. The State 

of Delaware commented that, based on 

the emissions data Maine provided in 

its submittal, half of the OTR states’ 

NOX emissions are smaller in magnitude 

than Maine’s (i.e., CT, DE, Washington 

DC, NH, RI, and VT), and the other 

half’s NOX emissions are of greater 

magnitude than Maine’s (i.e., MD, MA, 

NJ, NY, PA, and VA). 

Response #6: EPA acknowledges that 

Maine’s NOX exemption submission to 

EPA states that Maine’s NOX emissions 

are small compared to the total 

emissions of the entire OTR, and that 

Maine provided that comparison as one 

aspect of the total weight of evidence 

supporting its request. The magnitude of 

NOX emissions in an area, however, is 

not a criterion for granting a NOX

exemption request. Neither the 

magnitude of Maine’s NOX emissions, 

nor the fact that Maine’s emissions 

constitute a relatively small percentage 

of total NOX emissions generated in the 

OTR, were factors that influenced EPA’s 

evaluation of the merits of Maine’s NOX

exemption request. The primary 

technical information that forms the 

basis of EPA’s approval of Maine’s NOX

exemption request consists of the back 

trajectory analyses described in Maine’s 

submittal, the conclusions of which are 

generally supported by the 

photochemical grid modeling conducted 

previously by EPA. Moreover, Maine is 

not seeking to increase its NOX

emissions by eliminating or curtailing 

existing emission controls currently 

being implemented by existing 

stationary sources in Maine. As 

explained earlier, EPA expects the 

overall trend in anthropogenic NOX

emissions to continue to decline in 

Maine over time due to already existing 

and enforceable pollution controls on 

those sources of NOX emissions. (VOC 

emissions are not the subject of this 

final action, which, as already noted, 

only addresses Maine’s request for a 


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6The NOX waiver guidance is not binding and 

EPA remains free to reconsider whether the 

recommendations set forth in the guidance are 

applicable or not in any given situation. As 

explicitly explained in the guidance: ‘‘[t]his 

document does not impose binding, enforceable 

requirements on any party, nor does it assure that 

EPA may approve all instances of its application, 

and thus the guidance may not apply to a particular 

situation based upon the circumstances presented. 

The EPA retains the discretion to adopt approaches 

on a case-by-case basis that differ from this 

guidance where appropriate.’’ 2005 NOX Waiver 

Guidance at p.3 

NOX exemption under CAA section 

182(f).) 

Comment #7: One commenter stated 

that the nonattainment new source 

review requirement to implement a 

level of emissions control constituting 

the Lowest Achievable Emission Rate 

(LAER), that would be replaced by Best 

Available Control Technology (BACT) 

by virtue of the NOX exemption EPA is 

approving, is very important to air 

quality and therefore should not be 

replaced. The commenter notes that 

LAER ensures a more stringent level of 

control. The commenter further states 

that such control is the backbone of 

maintaining air quality and is especially 

important where air quality is at, or 

near, the NAAQS, as are parts of Maine 

today. The commenter further 

concludes that ME DEP’s position is that 

BACT, the level of emissions control 

applicable to major new and modified 

stationary sources in areas designated 

unclassifiable/attainment for a 

particular NAAQS, will be as effective 

as LAER for reducing ozone levels, and 

the commenter disagrees with that 

position which the commenter 

attributes to ME DEP. The commenter 

asserts that a review of EPA’s RACT/

BACT/LAER Clearinghouse shows a 

very wide range for BACT emission 

limits, whereas LAER is either unique or 

more stringent than BACT, or at least 

equivalent to the most stringent BACT 

limits. The commenter points to an 

example to illustrate its point, one of 

ME DEP’s air pollution control licenses 

that would destroy fumes from loading 

crude oil into marine tank vessels. The 

commenter also makes a number of 

other assertions, all of which are 

designed to argue that LAER is more 

stringent than BACT and that EPA 

should therefore not grant Maine’s 

request for a NOX exemption. 

Response #7: In essence, the 

commenter asserts that a source 

required to meet a LAER level of 

emissions control will almost all of the 

time achieve greater emission 

reductions than a source that is required 

to meet a BACT level of emissions 

control. The commenter further alleges 

that the ME DEP takes the position that 

there is little to no difference between 

LAER and BACT levels of control when 

controlling NOX emissions. (VOCs are 

not the subject of this final action, and 

so are not discussed here). 

Whether or not ME DEP actually does 

take the position that, in most cases, a 

BACT level of control will yield the 

same level of emissions reductions as a 

LAER level of control is not germane to 

EPA’s analysis of the approvability of 

Maine’s request for a NOX exemption 

under CAA section 182(f). Thus, 

whether the comment were true, or not, 

it would not be relevant to this final 

action. Whether BACT or LAER applies 

to major new or modified sources of 

NOX in Maine is simply a factual 

consequence of whether EPA grants 

Maine’s NOX exemption request, and is 

not a technical or legal factor that 

determines (even in part) whether 

Maine qualifies for a NOX exemption 

under CAA section 182(f). As such no 

response to the comment is required. 

Nonetheless, EPA notes that LAER 

and BACT determinations are made 

independently, based on the specific 

facts for each project. By definition, the 

main difference between the two types 

of determinations is the fact that a 

BACT analysis will take into account 

energy, environmental, and economic 

impacts and other costs required to meet 

a specific emission limit. These factors 

are not relevant, however, when 

determining an emission limit that 

meets LAER. For these reasons, whether 

an emission limit determined as a result 

of a BACT or LAER analysis would turn 

out to be equivalent in any one 

particular case depends largely on the 

case-specific facts regarding the source 

and the various factors considered in 

the analysis. 

Moreover, EPA’s approval of Maine’s 

request is based on a technical 

demonstration submitted by ME DEP 

showing that NOX emissions in Maine 

are not having a meaningful adverse 

impact on the ability of any ozone 

nonattainment areas located in the OTR 

to attain the ozone standards during 

times when elevated ozone levels are 

monitored in those areas. Specifically, 

Maine analyzed the nearest of these 

areas (i.e., the nonattainment areas in 

Massachusetts and Connecticut). 

Consequently, any additional reductions 

in NOX emissions (such as the 

difference between LAER and BACT) 

are not necessary for attainment or 

maintenance of the ozone standards in 

the ozone nonattainment areas nearest 

to Maine and located in the OTR. 

Comment #8: Commenters stated that 

Maine’s technical demonstration ‘‘lacks 

the proper analysis needed for EPA to 

approve the [NOX waiver] request,’’ and 

that section 182 ‘‘specifically requires a 

technical demonstration that shows that 

‘net air quality benefits’ are greater in 

the absence of NOX reductions from the 

sources concerned.’’ The commenters 

also stated that the other two tests 

available under section 182(f), 

‘‘contribution to attainment’’ and ‘‘net 

ozone benefit,’’ only apply to 

nonattainment areas [and all of Maine is 

designated attainment] and the 

‘‘contribution to attainment’’ test is only 

available in areas not located within the 

OTR. 

Response #8: EPA has evaluated 

Maine’s request for a NOX waiver and 

concluded that the State has met the 

relevant statutory test and that approval 

of the request is consistent with the 

requirements of the Clean Air Act. This 

response explains why we have 

concluded that the ‘‘net ozone air 

quality benefit’’ test in CAA section 

182(f)(1)(B) is the relevant statutory test 

and how the information available to 

the Agency demonstrates that Maine has 

satisfied the requirements of that test. 

First, as explained in our 2005 NOX

waiver guidance (‘‘Guidance on 

Limiting Nitrogen Oxides Requirements 

Related to 8-Hour Ozone 

Implementation,’’ January 2005) (‘‘2005 

NOX Waiver Guidance’’),6 EPA 

concludes that the ‘‘net ozone air 

quality benefit’’ test outlined in section 

182(f)(1)(B) applies to nonattainment 

and attainment areas within an ozone 

transport region. Section 182(f)(1)(B) 

provides that the NOX requirements in 

section 182(f) shall not apply for 

‘‘nonattainment areas within . . . an 

ozone transport region if the 

Administrator determines . . . that 

additional reductions of [NOX] would 

not produce net ozone air quality 

benefits in such region.’’ 42 U.S.C. 

7511a(f)(1)(B). As explained in the 2005 

NOX waiver guidance, EPA believes ‘‘[i]t 

would be absurd and, therefore, it is 

unlikely that Congress intended to 

apply more stringent requirements in 

the attainment/unclassified portions of 

the [OTR] than would apply to more 

polluted portions.’’ 2005 NOX Waiver 

Guidance at pp. 23–24. Moreover, a key 

statutory consequence of a state’s 

inclusion in the OTR is that key 

nonattainment area requirements also 

apply in attainment areas. CAA section 

184(b)(2), for example, provides that 

certain sources shall be ‘‘subject to the 

requirements which would be 

applicable . . . if the area were 

classified as a Moderate nonattainment 

area.’’ 42 U.S.C. 7511c(b)(2). In this 

context, EPA concludes that the 

statutory language in CAA section 182(f) 

is ambiguous. EPA further believes that 


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it would not be reasonable to interpret 

the requirements of CAA section 182(f) 

as making it more difficult for an 

attainment area in the OTR than a 

nonattainment area in the OTR to 

qualify for a NOX waiver. EPA thus 

concludes that the ‘‘net ozone air 

quality benefit’’ is the appropriate 

statutory test to apply when evaluating 

Maine’s request. 

Second, CAA section 182(f)(1)(B), 

which establishes the ‘‘net ozone air 

quality benefit’’ test, states that the NOX

requirements in section 182(f) shall not 

apply if the Administrator determines 

that additional reductions of NOX

emissions would not produce a ‘‘net 

ozone air quality benefit.’’ As an initial 

matter and as acknowledged in the 2005 

guidance, EPA believes the term ‘‘net 

ozone air quality benefit’’ is ambiguous. 

It is thus appropriate for EPA to look to 

other relevant CAA provisions in 

interpreting this term. Of particular 

relevance are CAA section 184 (which 

establishes the OTR) and CAA section 

176A (which clarifies the purpose and 

intent behind creation of the OTR). 

These two provisions shed light on how 

terms in section 182(f) should be 

interpreted. Specifically, sections 176A 

and 184 focus on concerns regarding 

interstate transport of pollutants leading 

to a violation of a NAAQS in one or 

more states. Said another way, these 

sections focus on situations in which 

transported pollutants are making a 

meaningful contribution to ozone 

nonattainment. Put simply, Congress 

was concerned with reducing the 

impact of transported pollutants to areas 

that were not attaining the ozone 

standard. This plain, but important, 

conclusion also is supported by other 

provisions contained in section 184. In 

this context, EPA concludes that it is 

appropriate to interpret the ‘‘net ozone 

air quality benefit’’ test in CAA section 

182(f)(1)(B) as focused on downwind 

locations and days above the standard. 

In other words, the legally relevant 

ozone air quality benefits are those that 

occur in downwind nonattainment areas 

on days when those areas have air 

quality above the standard. Thus, we 

conclude it is appropriate, when 

evaluating whether this test has been 

satisfied, to focus on the impact of NOX

emissions from the area requesting a 

NOX waiver on any nonattainment 

area’s ability to attain the ozone 

standards. 

This conclusion is also consistent 

with the 2005 guidance which says that 

the analysis should focus on values 

above the ozone standard, and, in some 

situations, may also need to consider 

values just below the standard. The 

suggestion that ozone impacts on areas 

with values just below the standard 

should be considered is made in the 

context of discussing the analysis 

needed when implementation of NOX

emission controls would actually cause 

increased ozone levels in some areas. In 

such a situation, it is logical to consider 

impacts across areas to determine 

whether there is, on net, a benefit or 

disbenefit associated with NOX controls 

in the relevant area. EPA does not 

believe the guidance suggests that 

values below the standard should be 

considered in other circumstances such 

as those presented by Maine’s request. 

In any event, as noted above, guidance 

documents by their nature are not 

binding and EPA retains discretion to 

depart from the guidance in appropriate 

circumstances. For the reasons given 

above, EPA has determined that it is 

reasonable in this situation to focus on 

nonattainment areas and on days when 

air quality in those areas exceeds the 

standard. 

Third, in evaluating whether Maine 

has satisfied the ‘‘net ozone air quality 

benefit’’ test, we considered Maine’s 

unique position at the northern 

extremity of the OTR, our 2005 

guidance, the technical analysis 

presented by Maine and information 

provided by commenters in response to 

our notice of proposed rulemaking. 

Maine is in a relatively unique position 

for several reasons: (1) Because of its 

geographic position, Maine is generally 

downwind of nearby areas with high 

ozone on the days when those areas are 

experiencing ozone nonattainment 

problems; (2) Maine’s back trajectory 

modeling analysis shows that none of 

the air parcels associated with the 

nonattainment areas nearest to Maine 

pass through or traverse Maine’s airshed 

on days when the ozone standard is 

exceeded; and (3) CSAPR modeling 

suggests that Maine’s impact on 

nonattainment areas is not meaningful. 

For all of these reasons, we believe that 

these additional NOX emission 

reductions would not produce any 

meaningful ozone benefits in areas 

above the standard within the OTR and 

therefore concluded that Maine’s 

technical demonstration satisfies the 

requirements of the ‘‘net ozone air 

quality benefits test.’’ 

Fourth, as noted above, it is important 

to emphasize that EPA’s decision to 

grant Maine’s request will not result in 

the relaxation of any already required 

and operational emissions controls 

currently in place at stationary sources 

in Maine. Even with a NOX exemption 

in place, Maine will still be required to 

implement the air permitting 

requirements applicable in attainment 

areas for major new and modified 

stationary sources of NOX throughout 

the entire State of Maine (rather than the 

permitting requirements applicable in 

nonattainment areas). Major new and 

modified facilities must install best 

achievable control technology (BACT) to 

reduce emissions. In addition, the 

permitting requirements in Maine 

assure that the air quality does not 

degrade in areas that are currently 

meeting ozone standards. To obtain a 

new source permit, facilities must 

demonstrate as part of the permitting 

process that the new or modified source 

will not cause violations of air quality 

standards. As stated earlier, Maine also 

has shown that NOX emissions across 

the state will continue to decrease into 

the future as a result of implementation 

of a variety of state and federal control 

strategies, none of which will be 

affected by EPA’s decision to grant 

Maine’s request for a section 182(f) NOX

exemption. 

Finally, EPA’s case-specific analysis 

of Maine’s unique factual circumstances 

is consistent with EPA’s obligation 

under CAA section 182(f) to consider 

the NOX and VOC study required under 

CAA section 185B. Section 185B of the 

Act required EPA, in conjunction with 

the National Academy of Sciences, to 

conduct a study on the role of ozone 

precursors in tropospheric ozone 

formation and control and to submit a 

final report to Congress. See ‘‘The Role 

of Ozone Precursors in Tropospheric 

Ozone Formation and Control: A Report 

to Congress,’’ EPA–454/R–93–024, July 

1993. Section 5 of that report presents 

the key findings of the study and EPA’s 

response. The essential thrust of the 

study and report was to analyze the 

various factors that contribute to the 

problem of ozone nonattainment, 

including consideration of the 

complexities associated with the roles 

that NOX and VOC play in ozone 

formation. For example, Section 185B 

provides, in part, that ‘‘[t]he study shall 

examine the roles of NOX and VOC 

emission reductions, [and] the extent to 

which NOX reductions may contribute 

(or be counterproductive) to 

achievement of attainment in different 

nonattainment areas. . .’’ Thus, in 

parallel with our discussion in 

Response #8, above, in which we 

explain that the purpose and intent 

underlying CAA sections 182(f), 184, 

and 176A is to address the problem of 

ozone nonattainment within the OTR, 

Congress required EPA, through section 

185B, to conduct a study and submit a 

report with the goal of identifying 

improved ways of reducing ozone in 

ozone nonattainment areas. 

Consequently, it is reasonable as also 


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explained in our Response #8 to focus 

on Maine’s impacts on nonattainment 

areas and, in that light, EPA’s approval 

of Maine’s request for a NOX waiver is 

consistent with the purpose and content 

of the CAA section 185B study and 

report to Congress. 

Comment #9: Several commenters 

asked what would happen if Maine 

were to be designated nonattainment for 

the ozone NAAQS in the future. 

Response #9: If portions of Maine are 

designated nonattainment in the future 

for the current or a future ozone 

NAAQS, those areas would 

automatically be subject to all 

applicable ozone nonattainment 

requirements, including nonattainment 

NSR for NOX emissions under ME DEP’s 

new source review permitting 

requirements. 

Comment #10: Several commenters 

discussed the benefits of the OTR and 

alleged that if Maine is allowed to opt 

out of these uniform requirements, 

similar petitions could follow and the 

benefits of the OTR will be minimized. 

Response #10: To the extent that these 

comments are intended to relate to 

Maine’s OTR restructuring request for 

VOC nonattainment new source review, 

as noted above, EPA is not taking final 

action in this notice on that aspect of 

Maine’s request; so EPA here provides 

no response to the comment as it relates 

to that specific part of Maine’s request. 

With respect to Maine’s NOX exemption 

request, however, as discussed above, 

Maine’s location at the northern 

extremity of the OTR is unique. 

Moreover, EPA notes that its prior 

approvals of Maine’s NOX exemption 

requests in 1995 and 2006 did not result 

in other NOX exemption requests from 

states in the OTR. If, however, such a 

request were to be submitted to EPA by 

another state in the OTR, EPA would 

evaluate that request and conduct notice 

and comment rulemaking as appropriate 

on any proposed action on that request. 

Comment #11: One commenter said 

he would be willing to pay more for 

gasoline to keep Maine’s air cleaner. 

Response #11: EPA’s approval of 

Maine’s NOX exemption request will 

have no effect on gasoline formulation 

or gasoline prices. There is no 

relationship under the CAA between 

gasoline prices and whether Maine 

legally qualifies for a NOX exemption 

under CAA section 182(f). 

Comment #12: One commenter states 

that nearly every state in the 13-state 

OTR has reduced its NOX and VOCs by 

a higher rate relative to its 1990 baseline 

than has Maine. The commenter states 

that these data, covering the period 1990 

to 2008, show that upwind states have 

shouldered a more significant burden to 

reduce air pollution than has Maine. 

Response #12: EPA agrees that 

significant emission reductions of NOX

have occurred throughout the OTR, and 

also throughout the country, as a result 

of both state and federal pollution 

control efforts. As the commenter notes, 

the rate of NOX emissions decreases 

varies from state to state. The exact rate 

of NOX emissions decreases in Maine 

from 1990 to the present does not affect 

Maine’s analysis supporting its request 

for a NOX exemption, nor does it 

constitute a relevant fact that would or 

should inform EPA’s evaluation and 

analysis of Maine’s request for a NOX

exemption under section 182(f). As 

explained earlier in response to other 

comments, the relevant factors for EPA’s 

evaluation of Maine’s NOX exemption 

request essentially consist of the fact 

that all of Maine is attaining the ozone 

NAAQS and that Maine’s NOX

emissions do not meaningfully affect 

nonattainment areas within the OTR, on 

days when those areas exceed the ozone 

NAAQS. Again, the amount of NOX

emitted and controlled by other states is 

not a factor relevant to EPA’s analysis 

under CAA section 182(f) of a NOX

exemption request. To the extent the 

comment relates to VOC emissions, EPA 

is not taking action in this final 

rulemaking on Maine’s OTR 

restructuring request, and so EPA 

provides no response here to the 

comment in that respect. 

Comment #13: One commenter noted 

that, if EPA approves Maine’s requests, 

hazardous air pollutants will increase in 

Maine. 

Response #13: The 1990 CAA 

Amendments significantly expanded 

EPA’s authority to regulate hazardous 

air pollutants (HAPs). Section 112 of the 

CAA lists 187 HAPs to be regulated by 

source category. The National Emission 

Standards for Hazardous Air Pollutants 

(NESHAPs) promulgated after the 1990 

CAA Amendments are found in 40 CFR 

Part 63. These standards require 

application of technology-based 

emissions standards referred to as 

Maximum Achievable Control 

Technology (MACT). Consequently, 

these post-1990 NESHAPs are also 

referred to as MACT standards. These 

standards are not affected by this final 

rulemaking action. 

Comment #14: Several commenters 

stated that Maine should do its ‘‘fair 

share’’ in controlling air pollution. 

Response #14: As noted earlier, Maine 

is not requesting to discontinue or 

remove from its SIP any existing NOX

pollution controls. Specifically, existing 

NOX RACT requirements already 

contained in Maine’s SIP will remain in 

Maine’s SIP and stationary sources 

subject to those requirements before our 

action will continue to be subject to 

those same requirements. As explained 

earlier and in our August 5, 2013 NPR, 

for major new and modified stationary 

sources of NOX, Maine’s PSD permitting 

requirements will apply in lieu of the 

nonattainment NSR permitting 

requirements. The PSD permitting 

program is the major new source review 

permitting program under the CAA that 

generally applies in attainment areas 

(such as Maine). EPA has determined 

that Maine qualifies for a NOX

exemption under CAA section 

182(f)(1)(B) as a matter of law and thus 

Maine will, in fact, be doing what it is 

required to do legally under the CAA in 

order to control NOX emissions. 

Comment #15: EPA received a 

comment that an economic analysis 

should have been performed. Another 

commenter noted that Maine should be 

required to show its economic analysis 

in support of its stated rationale that: 

‘‘The RACT, Lowest Achievable 

Emission Rate (LAER) and 1.15 VOC 

and NOX emission offset requirements 

hinder economic sustainability and 

development in Maine.’’ 

Response #15: No provision of CAA 

section 182(f) CAA, or any aspect of 

EPA’s 2005 NOX exemption guidance, 

indicates that an economic analysis is a 

relevant part of EPA’s evaluation of a 

state’s request for a NOX exemption 

under CAA section 182(f). The basis for 

EPA’s action has been explained in 

EPA’s August 5, 2013 NPR and in this 

final notice. The relevant factors are the 

CAA section 182(f)(1)(B) criteria that 

must be met by a state requesting a NOX

exemption and the technical 

demonstration submitted by such state 

in support of its request. 

Comment #16: One commenter 

requested that EPA conduct additional 

modeling and analyses to determine if 

new sources, or increased emissions 

from existing sources, would cause a 

violation of the ozone standard in York 

County, Maine. 

Response #16: As discussed in more 

detail in Response #3, ME DEP’s 

emission projections included in its 

EPA-approved ozone redesignation 

request and in its regional haze SIP 

submittal indicate that NOX emissions 

in York County, and in the entire state 

of Maine, are projected to decrease in 

the future. Furthermore, any new source 

would, even after EPA’s approval of 

Maine’s NOX waiver request, be subject 

to Maine’s PSD permitting 

requirements. Under the PSD 

requirements, a source must 

demonstrate that its emissions, along 

with other sources, will not cause of a 


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violation of ambient air quality 

standards. (See Maine’s Chapter 115, 

‘‘Major and Minor Source Air Emission 

License Regulations,’’ section 7.) 

Comment #17: EPA received 

numerous supportive comments from 

specific industrial sources in Maine; 

groups representing the lumber, wood 

and paper industries in Maine; and 

environmental consultants in Maine 

that usually represent Maine industries. 

All of these groups favor EPA’s approval 

of Maine’s section 182(f) NOX

exemption request, dated October 13, 

2012. The favorable comments generally 

point to the fact that Maine is attaining 

the 2008 ozone NAAQS (40 CFR 81.320) 

and that much of Maine has ozone air 

quality well below the level of the 2008 

ozone NAAQS. Some of the supportive 

comments also agree with EPA that 

Maine’s October 13, 2012 submittal for 

a NOX exemption contains a technical 

demonstration that meets the 

requirements of section 182(f) of the 

CAA. Several of the supportive 

comments also mention the benefit to 

Maine’s economy that will result from 

EPA’s approval of Maine’s request, and 

express concern about negative impacts 

on employment in the state that would 

occur if EPA were to deny Maine’s 

request. 

Response #17: The basis for EPA’s 

approval of Maine’s NOX exemption 

request has been discussed in detail in 

EPA’s August 5, 2013 NPR and in this 

final notice. While EPA agrees that it is 

appropriate to approve Maine’s NOX

exemption request in accordance with 

CAA section 182(f)(1)(B), benefits or 

harms to Maine’s economy are not part 

of the CAA section 182(f)(1)(B) analysis. 

Therefore, EPA has not taken economic 

factors, whether favorable or 

unfavorable, into account in approving 

Maine’s request for a NOX exemption 

under CAA section 182(f)(1)(B). 

Comment #18: Several commenters 

commented on the public participation 

procedures Maine used in relation to its 

NOX exemption request, stating that 

notice of Maine’s intended action was 

difficult to find on the ME DEP’s 

internet page, and that ME DEP failed to 

provide adequate notice in Maine 

newspapers. One commenter stated that 

‘‘DEP failed to give reasonable notice by 

prominent advertisement in the areas 

affected—essentially the entire state—by 

their Restructure Request.’’ 

Response #18: The State of Maine and 

EPA followed established and 

appropriate public notice and comment 

procedures under applicable state and 

federal law in relation to Maine’s NOX

exemption request, including 

procedures applicable to revisions of 

Maine’s state regulations, and 

procedures applicable to submission of 

its revised regulations to EPA as a SIP 

revision. On September 10, 2013, Maine 

DEP held a public hearing on the state’s 

SIP revision, and the hearing was well 

attended. Numerous comments were 

received by Maine at the hearing, as 

well as by mail and email. In addition, 

EPA extended the public comment 

period provided in its August 5, 2013 

NPR for an additional 30 days (for a 

total of 60 days) in order to give the 

public additional time to provide 

comments (78 FR 54813, September 6, 

2013). EPA also received numerous 

comments, from approximately 30 

parties, that are being addressed in this 

notice. As noted earlier, Maine’s request 

for OTR restructuring relating to VOC 

nonattainment new source review is not 

the subject of EPA’s final action here. 

EPA also is not taking action to revise 

the regulations in Maine’s SIP as 

requested by Maine in its submittal 

dated November 18, 2013, because the 

regulations in the SIP revision are only 

relevant to the OTR restructuring aspect 

of the state’s request and EPA is not 

taking action on that aspect of Maine’s 

request. In this final action, EPA is only 

approving Maine’s NOX exemption 

request, dated October 13, 2012, under 

section 182(f) of the CAA. Maine’s SIP 

does not require revision in order for the 

NOX exemption to take effect under the 

SIP, because the SIP already contains 

language that accommodates the NOX

exemption that EPA is approving in this 

final action. 

IV. Final Action 

EPA is approving the State of Maine’s 

request for an exemption from the NOX

requirements contained in Section 

182(f) of the CAA for the entire State of 

Maine specifically pertaining to (1) the 

requirement to implement pollution 

controls meeting reasonably available 

control technology (RACT) for 

emissions of NOX; and (2) the 

nonattainment area new source review 

(NSR) permitting requirements for major 

new and modified sources as they apply 

to emissions of NOX. EPA is approving 

this request pursuant to CAA section 

182(f)(1)(B). If EPA subsequently 

determines, based on future air quality 

analyses, that such NOX emissions 

controls in Maine are necessary to meet 

the requirements of the CAA, EPA may 

initiate rulemaking to revoke the NOX

exemption being approved in relation to 

the 2008 ozone NAAQS. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and is therefore not 

subject to review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011). 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Burden is 

defined at 5 CFR 1320.3(b). 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

regulation subject to notice and 

comment rulemaking requirements 

under the Administrative Procedures 

Act or any other statute unless the 

agency certifies the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

small organizations and small 

governmental jurisdictions. For 

purposes of assessing the impacts of this 

rule on small entities, small entity is 

defined as: (1) A small business as 

defined in the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201;) (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. After considering 

the economic impacts of this rule on 

small entities, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. This rule will not impose any 

requirements directly on small entities. 

Entities potentially affected directly by 

this rule include state, local and tribal 

governments and none of these 

governments are small governments. 

Other types of small entities are not 

directly subject to the requirements of 

this rule. 

D. Unfunded Mandates Reform Act 

This action contains no federal 

mandate under the provisions of title II 

of the Unfunded Mandates Reform Act 

of 1995 (UMRA), 2 U.S.C. 1531–1538 for 


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state, local and tribal governments, in 

the aggregate, or the private sector. This 

action imposes no enforceable duty on 

any state, local or tribal governments or 

the private sector. Therefore, this action 

is not subject to the requirements of 

section 202 and 205 of the UMRA. This 

action is also not subject to the 

requirements of section 203 of the 

UMRA because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). It would not have a substantial 

direct effect on one or more Indian 

tribes, since no tribe has to develop an 

implementation plan under these 

regulatory revisions. Furthermore, these 

regulation revisions do not affect the 

relationship or distribution of power 

and responsibilities between the federal 

government and Indian tribes. The CAA 

and the Tribal Air Rule establish the 

relationship of the federal government 

and tribes in developing plans to attain 

the NAAQS, and these revisions to the 

regulations do nothing to modify that 

relationship. Thus, Executive Order 

13175 does not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

The EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because it does not establish 

an environmental standard intended to 

mitigate health or safety risks. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104– 

113, section 12(d) (15 U.S.C. 272 note) 

directs the EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. NTTAA directs the 

EPA to provide Congress, through OMB, 

explanations when the agency decides 

not to use available and applicable 

voluntary consensus standards. This 

action does not involve technical 

standards. Therefore, the EPA is not 

considering the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies and activities on minority 

populations and low-income 

populations in the United States. The 

EPA has determined that this action will 

not have disproportionately high and 

adverse human health or environmental 

effects on minority or low-income 

populations because it does not affect 

the level of protection provided to 

human health or the environment. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. section 801 et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

generally provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 

and to the Comptroller General of the 

United States. EPA will submit 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 United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. section 804(2). This 

rule will be effective August 28, 2014. 

L. 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 September 29, 

2014. 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, Incorporation by 

reference, Nitrogen oxides, Ozone, 

Volatile organic compounds, 

Intergovernmental relations, Reporting 

and recordkeeping requirements. 

Dated: July 18, 2014. 

Gina McCarthy, 

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 et seq. 

Subpart U—Maine 

■ 2. Section 52.1023 is amended by 

adding paragraph (j) to read as follows: 

§ 52.1023 Control strategy: Ozone. 

* * * * * 

(j) Approval. EPA is approving an 

exemption request from the nitrogen 

oxides (NOx) requirements contained in 

Section 182(f) of the Clean Air Act for 

the entire state of Maine for purposes of 

the 2008 ozone National Ambient Air 

Quality Standard. The exemption 

request was submitted by the Maine 

Department of Environmental Protection 

on October 13, 2012. This approval 

exempts, for purposes of the 2008 ozone 

standard, major sources of nitrogen 

oxides in Maine from: 


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(1) The requirement to implement 

controls meeting reasonably available 

control technology (RACT) for NOX; and 

(2) Nonattainment area new source 

review requirements for major new and 

modified sources as they apply to 

emissions of NOX. 

[FR Doc. 2014–17583 Filed 7–28–14; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 20 

[WT Docket No. 05–265; DA 14–865] 

Reexamination of Roaming Obligations 

of Commercial Mobile Radio Service 

Providers and Other Providers of 

Mobile Data Services 

AGENCY: Federal Communications 

Commission. 

ACTION: Petition for reconsideration; 

denial. 

SUMMARY: In this document, the 

Wireless Telecommunications Bureau 

(Bureau) addresses a petition filed by 

Blanca Telephone Company (Blanca), 

seeking reconsideration of the 

Commission’s decision to reject a 

uniform time limit or ‘‘shot clock’’ on 

all data roaming negotiations. The 

Bureau finds that Blanca presents no 

material error or omission in the 

Commission’s Data Roaming Order, or 

any additional new facts warranting 

reconsideration. In the Data Roaming 

Order, the Commission’s decision to 

reject a single time limit for all 

negotiations but to consider requests for 

time limits on a case-by-case basis 

provides appropriate flexibility in 

negotiations that will involve a wide 

range of evolving technologies and 

commercial contexts, while allowing 

parties to seek Commission intervention 

if a negotiating partner unduly delays a 

particular negotiation. 

DATES: Effective July 29, 2014. 

FOR FURTHER INFORMATION CONTACT: 

Peter Trachtenberg, Spectrum and 

Competition Policy Division, Wireless 

Telecommunications Bureau, (202) 418– 

7369, email peter.trachtenberg@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Wireless 

Telecommunications Bureau’s Order on 

Reconsideration, WT Docket No. 05– 

265, DA 14–865, adopted June 25, 2014, 

and released June 25, 2014. The full text 

of this document is available for 

inspection and copying during business 

hours in the FCC Reference Information 

Center, Portals II, 445 12th Street SW., 

Room CY–A257, Washington, DC 20554. 

Also, it may be purchased from the 

Commission’s duplicating contractor at 

Portals II, 445 12th Street SW., Room 

CY–B402, Washington, DC 20554; the 

contractor’s Web site, http://

www.bcpiweb.com; or by calling (800) 

378–3160, facsimile (202) 488–5563, or 

email FCC@BCPIWEB.com. Copies of 

the Order on Reconsideration also may 

be obtained via the Commission’s 

Electronic Comment Filing System 

(ECFS) by entering the docket number 

WT Docket No. 05–265. Additionally, 

the complete item is available on the 

Federal Communications Commission’s 

Web site at http://www.fcc.gov. 

1. Data Roaming Order, 76 FR 26199, 

May 6, 2011. Data roaming allows 

consumers to obtain data services over 

their mobile devices when they travel 

outside their own provider’s network 

coverage areas, by relying on another 

provider’s network. In the Data Roaming 

Order, the Commission sought to 

promote consumer access to nationwide 

mobile broadband service by adopting a 

rule requiring facilities-based providers 

of commercial mobile data services to 

offer roaming arrangements to other 

such providers on commercially 

reasonable terms and conditions, subject 

to certain limitations. To ensure that the 

data roaming rule is sufficiently flexible 

to apply to a wide range of evolving 

technologies and commercial contexts, 

the Commission allowed providers ‘‘[to] 

negotiate the terms of their roaming 

arrangements on an individualized 

basis.’’ As the Commission explained, 

this means that providers may tailor 

roaming agreements to ‘‘individualized 

circumstances without having to hold 

themselves out to serve all comers 

indiscriminately on the same or 

standardized terms.’’ 

2. The Commission made clear that, 

once a provider requests a data roaming 

arrangement, a would-be host provider 

‘‘has a duty to respond promptly to the 

request and avoid actions that unduly 

delay or stonewall the course of 

negotiations regarding that request.’’ 

The Commission also addressed 

commenter proposals designed to limit 

delay tactics in data roaming 

negotiations, including proposals to 

establish a mandatory, uniform time 

limit, described as a ‘‘shot clock,’’ for all 

negotiations subject to the 

Commission’s data roaming rule. The 

Commission declined to adopt a 

mandatory, uniform time limit based on 

the Commission’s assessment that some 

data roaming negotiations may be ‘‘more 

complex or fact-intensive’’ than others 

and require more time. Instead, the 

Commission determined that if a 

provider believes that another provider 

is unduly delaying a data roaming 

negotiation, it may ask the Commission 

to set a time limit for that particular 

negotiation. 

3. The Commission provided that it 

would address all such individual 

requests for a time limit, and any other 

disputes over a provider’s conduct 

during data roaming negotiations, on a 

case-by-case basis, taking into 

consideration the totality of the 

circumstances. Among the factors that 

the Commission stated it may consider 

in determining the commercial 

reasonableness of a host provider’s 

conduct during negotiations are whether 

the provider ‘‘has responded to the 

request for negotiation,’’ whether it has 

engaged in ‘‘a persistent pattern of 

stonewalling behavior,’’ and ‘‘the length 

of time since the initial request.’’ The 

Commission held that a party to a data 

roaming dispute may seek relief through 

either a petition for declaratory ruling or 

a formal or informal complaint, and it 

established specific dispute resolution 

procedures to ensure the prompt 

resolution of any data roaming disputes 

brought before it. 

4. Blanca Telephone Company 

Petition for Reconsideration. On June 6, 

2011, Blanca filed the instant Petition, 

which requests that the Commission 

‘‘reconsider and reverse its decision 

declining to adopt a time limit for 

roaming negotiations’’ that are subject to 

the Commission’s data roaming 

requirements. Blanca explains that the 

proposed time limit or ‘‘shot clock’’ 

would allow ‘‘either party to a 

negotiation, after a reasonable period 

such as 60 days,’’ to refer the matter to 

the Commission for resolution pursuant 

to the dispute resolution processes 

established in the Data Roaming Order. 

Blanca contends that the Commission’s 

decision to address claims of undue 

delay on a case-by-case basis, rather 

than establishing a uniform time limit 

for all data roaming negotiations, is 

flawed in two respects. First, it argues 

that the Commission’s stated rationale 

for this decision—i.e., that some 

negotiations may be more complex or 

fact-intensive than others and thus 

require more time—failed to quantify 

the actual number of negotiations that 

are likely to involve complex issues. 

According to Blanca, ‘‘[i]f it turns out to 

be the case that relatively few 

negotiations fall into the ‘complex’ 

category,’’ then the Commission’s 

determination ‘‘will have imposed an 

unwarranted disadvantage on smaller 

rural and regional’’ providers seeking 

data roaming arrangements with 

nationwide providers. Second, Blanca 

maintains that the Commission’s 

decision to impose time limits on a 

case-by-case basis will place an 


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