7734 Federal Register / Vol. 87, No. 28 / Thursday, February 10, 2022 / Rules and Regulations 

1 40 CFR 81.90 defines the Androscoggin Valley 

Interstate Air Quality Control Region as 

Androscoggin County, Kennebec County, Knox 

County, Lincoln County, Waldo County and parts 

of Franklin County, Oxford County, Somerset 

County. Androscoggin Valley also includes Cass 

County in the State of New Hampshire. Cass County 

is not included in the scope of this petition and will 

remain in the OTR. 

2 40 CFR 81.181 defines the Down East Intrastate 

Air Quality Control Region as Hancock County, 

Washington County and parts of Penobscot County 

and Piscataquis County. 

3 40 CFR 81.78 defines the Metropolitan Portland 

Intrastate Air Quality Control Region as 

Cumberland County, Sagadahoc County, York 

County, and the towns of Brownfield, Denmark, 

Fryeburg, Hiram, and Porter. 

4Existing State Implementation Plan (SIP)- 

approved controls that were adopted by Maine due 

to its inclusion in the OTR will remain in place 

unless and until Maine submits, and the EPA 

approves, a SIP revision which includes a CAA 

section 110(1) demonstration. 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–OAR–2020–0310; FRL–8007–03– 

OAR] 

40 CFR Part 81 

Response to Clean Air Act Section 

176A Petition From Maine; Final Action 

on Petition 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of final action on 

petition. 

SUMMARY: The Environmental Protection 

Agency (EPA) is granting a Clean Air 

Act (CAA) section 176A petition 

submitted by the state of Maine on 

February 24, 2020. The petition 

requested that the EPA remove a portion 

of Maine from the Ozone Transport 

Region (OTR) based on that area’s 

continued attainment with ozone 

National Ambient Air Quality Standards 

(NAAQS) and technical analyses 

demonstrating that further control of 

emissions from that portion of Maine 

will not significantly contribute to the 

attainment of any ozone standard in any 

area of the OTR. 

DATES: This final action is effective 

March 14, 2022. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2020–0310. All 

documents in the docket are listed and 

publicly available at http://

www.regulations.gov. Publicly available 

docket materials are also available in 

hard copy at the Air and Radiation 

Docket and Information Center, EPA/ 

DC, EPA William Jefferson Clinton West 

Building, Room 3334, 1301 Constitution 

Avenue NW, Washington, DC. Out of an 

abundance of caution, the EPA Docket 

Center and Reading Room was closed to 

public visitors on March 31, 2020, to 

reduce the risk of transmitting COVID– 

19. The EPA Docket Center and Reading 

Room has since started the reopening 

process. Visitors will be considered on 

an exception basis and allowed entrance 

by appointment only. Docket Center 

staff will continue to provide remote 

customer service via email, phone, and 

webform. For further information on 

EPA Docket Center services and the 

current status, please visit https://

www.epa.gov/dockets. In addition to 

being available in the docket, an 

electronic copy of this document will be 

posted at https://www.epa.gov/ozonepollution/ozone-national-ambient-airquality-standards-section-176a-petitionmaine. 

FOR FURTHER INFORMATION CONTACT: 

Questions concerning this final notice 

should be directed to Holly DeJong, U.S. 

Environmental Protection Agency, 

Office of Air Quality Planning and 

Standards, Air Quality Policy Division, 

Mail code C539–01, Research Triangle 

Park, NC 27711, telephone (919) 541– 

4353; email at dejong.holly@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document wherever 

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

the U.S. EPA. The information in this 

SUPPLEMENTARY INFORMATION section of 

this preamble is organized as follows: 

I. Executive Summary 

II. Background and Legal Authority 

A. Ozone Formation and Impacts 

B. Sections 176A and 184 of the CAA and 

the OTR Process 

C. Legal Standard for This Action 

D. Previous Actions 

E. The CAA Section 176A Petition From 

Maine 

III. The EPA’s Final Response to the CAA 

Section 176A Petition From Maine 

A. The EPA’s Assessment of Maine’s CAA 

Section 176A Petition 

B. Public Comments 

IV. Final Action To Grant Maine’s CAA 

Section 176A Petition 

V. Judicial Review and Determinations Under 

Sections 307(b)(1) and 307(d) of the CAA 

VI. Statutory Authority 

I. Executive Summary 

The EPA is finalizing approval of a 

Clean Air Act (CAA) section 176A 

petition submitted by the state of Maine 

on February 24, 2020. In the petition, 

Maine requested that the EPA remove 

the state of Maine from the Ozone 

Transport Region (OTR) except for 111 

towns and cities comprising the 

Androscoggin Valley,1 Down East 2 and 

Metropolitan Portland 3 Air Quality 

Control Regions, commonly referred to 

as the ‘‘Portland and Midcoast Ozone 

Areas.’’ Maine contended that emissions 

from northern and eastern Maine do not 

significantly contribute to ozone 

nonattainment in other states nor do 

they interfere with maintenance of the 

ozone National Ambient Air Quality 

Standards (NAAQS) in those Maine 

municipalities that would remain in the 

OTR. Therefore, the state asserted that 

removing these areas from the OTR 

would not degrade the air quality in 

Maine or in any other state. The petition 

included monitoring data and technical 

analyses to support a demonstration that 

the areas requested to be removed from 

the OTR are in attainment with the 

ozone NAAQS and that emissions from 

these areas do not significantly 

contribute to ozone nonattainment in 

any area of the OTR. For the reasons 

detailed in this notice, the EPA is 

finalizing approval of the petition on the 

basis that the portion of the state 

requested to be removed from the OTR 

does not contribute to a violation of any 

ozone standard in any area of the OTR, 

and that further control of emissions 

from that portion of Maine will not 

significantly contribute to the 

attainment of any ozone standard in any 

area of the OTR. 

Section 176A(a) of the CAA provides 

the Administrator with the authority to 

develop transport regions for particular 

pollutants where the Administrator 

determines that interstate transport of 

air pollutants from one or more states 

contributes significantly to violations of 

air quality standards in one or more 

other states. In the 1990 CAA 

Amendments, Congress created the OTR 

by statute under CAA section 184(a) to 

address the interstate transport of ozone 

pollution in the Northeast and MidAtlantic regions of the United States 

(U.S.). 

The creation of an interstate transport 

region requires establishing a transport 

commission with representatives from 

each state who make recommendations 

to mitigate interstate pollution. Model 

rules and programs designed through 

the OTC (Ozone Transport Commission) 

may be adopted by the individual states 

through their own rulemaking 

processes. Under CAA section 184(c), 

the OTC may petition the EPA to 

approve additional control measures to 

be applied within all or part of the 

transport region. Maine seeks to remove 

portions of the state from the OTR, 

thereby releasing those areas from OTC 

recommendations and applicable 

control requirements established under 

CAA section 184, effective 30 days after 

the date of publication of this notice.4

Section 176A(a)(1) of the CAA 

provides the Administrator with 

authority to ‘‘add any state or portion of 


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5Primary and secondary NAAQS were first 

established for photochemical oxidants in 1971. 36 

FR 8186 (April 30, 1971). In 1979, the EPA revised 

the NAAQS to change the indicator from 

photochemical oxidants to O3 and to revise the 

primary and secondary standards. 44 FR 8202 

(February 8, 1979). In 2005, the 1-Hour Ozone 

NAAQS was revoked for all areas except the 8-Hour 

Ozone nonattainment Early Action Compact (EAC) 

areas. 70 FR 44470 (June 15, 2005). In 1997, the 

EPA once again revised the primary and secondary 

standards for ozone NAAQS. 62 FR 38856 (July 18, 

1997). In 2015, the 1997 ozone NAAQS were 

revoked. 80 FR 12264 (March 6, 2015). 

6The 1997 ozone NAAQS were revoked in 2015. 

80 FR 12264 (March 6, 2015). 

7See National Ambient Air Quality Standards for 

Ozone, Final Rule, 73 FR 16436 (March 27, 2008). 

8See National Ambient Air Quality Standards for 

Ozone, Final Rule, 80 FR 65292 (October 26, 2015). 

9We note that one exception to the statewide 

applicability of these control requirements applies 

to Virginia, as only a portion of that state is 

included within the OTR. 10 In the OTR, enhanced vehicle inspection and 

maintenance programs are required in metropolitan 

statistical areas with a 1990 Census population of 

100,000 or more. 11Section 184(b)(2) of the CAA provides that, for 

purposes of implementing these requirements, a 

Continued 

a state to any [transport] region . . . 

whenever the Administrator has reason 

to believe that the interstate transport of 

air pollutants from such state 

significantly contributes to a violation of 

the standard in the transport region.’’ 

Conversely, CAA section 176A(a)(2) 

allows the Administrator to ‘‘remove 

any state or portion of a state from [a 

transport] region whenever the 

Administrator has reason to believe that 

the control of emissions in that state or 

portion of the state . . . will not 

significantly contribute to the 

attainment of the standard in any area 

in the region.’’ 

In making this final decision, the EPA 

reviewed the petition from Maine, the 

public comments received, the relevant 

statutory authorities and other relevant 

materials. Accordingly, the EPA grants 

the CAA section 176A petition from 

Maine. 

II. Background and Legal Authority 

A. Ozone Formation and Impacts 

Ground-level ozone causes a variety 

of negative effects on human health, 

vegetation, and ecosystems. In humans, 

acute and chronic exposure to ozone is 

associated with premature mortality and 

several morbidity effects, such as 

asthma exacerbation. In ecosystems, 

ozone exposure may cause visible foliar 

injury, decrease plant growth, and affect 

ecological community composition. 

Ground-level ozone is not emitted 

directly into the air. Rather, it is a 

secondary air pollutant created by 

chemical reactions between nitrogen 

oxides (NOX) and volatile organic 

compounds (VOCs) in the presence of 

sunlight. These precursor emissions can 

be transported downwind directly or, 

after transformation in the atmosphere, 

as ozone. As a result, ozone formation, 

atmospheric residence, and transport 

can occur on a regional scale (i.e., 

hundreds of miles). 

The EPA has regulated ozone 

pollution and the precursor emissions 

that contribute to ozone for the last five 

decades.5 Currently, there are two 

NAAQS in effect for ozone.6 On March 

12, 2008, the EPA promulgated a 

revision to the ozone NAAQS, lowering 

both the primary and secondary 

standards to 75 parts per billion (ppb).7

On October 1, 2015, the EPA lowered 

the primary and secondary standards to 

70 ppb.8

In accordance with CAA section 

107(d), the EPA designates areas as 

‘‘attainment’’ (meeting the standard), 

‘‘nonattainment’’ (not meeting the 

standard) or ‘‘unclassifiable’’ 

(insufficient data to classify). States 

with areas designated as nonattainment 

must develop and submit SIPs to the 

EPA with the goal of attaining and 

maintaining the level of the NAAQS by 

the applicable attainment deadline. In 

this way, the EPA and states work 

collaboratively to establish and 

implement nonattainment area planning 

requirements that are designed to bring 

areas into attainment of the NAAQS by 

the applicable attainment deadline. A 

key step in ensuring that areas attain 

and maintain ozone NAAQS is to assess 

and understand the potential for ozone 

source formation in a given area, 

including the potential for upwind 

states’ emissions to impact ozone 

formation in downwind states. 

B. Sections 176A and 184 of the CAA 

and the OTR Process 

Subpart 1 of part D of title I of the 

CAA provides the general plan 

requirements for designated 

nonattainment areas. This subpart 

includes provisions governing the 

development of transport regions to 

address the interstate transport of 

pollutants that contribute to NAAQS 

violations. In particular, section 176A(a) 

of the CAA provides that, on the EPA’s 

own motion or by a petition from the 

Governor of any state, whenever the 

EPA has reason to believe that the 

interstate transport of air pollutants 

from one or more states contributes 

significantly to a violation of the 

NAAQS in one or more other states, the 

EPA may establish, by rule, a transport 

region for such pollutant that includes 

such states. The provision further 

provides that the EPA may add any state 

or portion of a state to any transport 

region whenever the Administrator has 

reason to believe that the interstate 

transport of air pollutants from such 

state significantly contributes to a 

violation of the standard in the transport 

region. 

Section 176A(b) of the CAA provides 

that when the EPA establishes a 

transport region, the Administrator shall 

establish an associated transport 

commission, comprised of (at a 

minimum) the following: The Governor 

or her or his designee of each covered 

state, the EPA Administrator or a 

designee, the Regional EPA 

Administrator or a designee, and an air 

pollution control official appointed by 

the Governor of each state. The purpose 

of the transport commission is to assess 

the degree of interstate transport 

throughout the transport region and 

assess and recommend control strategies 

to the EPA to mitigate such interstate 

transport. 

Subpart 2 of part D of title I of the 

CAA provides plan requirements 

specific to the ozone NAAQS. 

Consistent with CAA section 176A, 

found in subpart 1, subpart 2 includes 

specific provisions focused on the 

interstate transport of ozone. CAA 

section 184(a) establishes a single 

transport region for ozone—the OTR— 

comprising the states of Connecticut, 

Delaware, Maine, Maryland, 

Massachusetts, New Hampshire, New 

Jersey, New York, Pennsylvania, Rhode 

Island, Vermont, and the Consolidated 

Metropolitan Statistical Area for the 

District of Columbia, which includes 

certain portions of northern Virginia. 

The Virginia counties and cities 

included in the OTR are Arlington 

County, Fairfax County, Loudoun 

County, Prince William County, Stafford 

County, Alexandria City, Fairfax City, 

Falls Church City, Manassas City, and 

Manassas Park City. 

Section 184(b) of the CAA establishes 

specific control requirements that each 

state in the OTR is required to 

implement within the state, including 

certain controls on sources of NOX and 

VOCs. These control requirements are 

required to be implemented statewide in 

any state included within the OTR, 

regardless of ozone attainment status.9

Under CAA section 184(b)(1)(A), OTR 

states must include enhanced vehicle 

emissions inspection and maintenance 

(I/M) programs in their SIPs.10 Under 

CAA section 184(b)(2), major stationary 

sources of VOCs in the OTR are subject 

to the same requirements that apply to 

major sources in designated ozone 

nonattainment areas classified as 

Moderate.11 Thus, the state must adopt 


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major stationary source shall be defined as any 

source that emits or has the potential to emit at least 

50 tons per year of VOCs. 

12See 72 FR 28772, May 16, 2012, Air Quality: 

Widespread Use for Onboard Refueling Vapor 

Recovery and Stage II Waiver. 

13See 57 FR 55622 (Nitrogen Oxides Supplement 

to the General Preamble, published November 25, 

1992). 

14As stated in the EPA’s I/M (November 5, 1992; 

57 FR 52950) and conformity rules (60 FR 57179 

for transportation rules and 58 FR 63214 for general 

rules), certain NOX requirements in those rules do 

not apply where the EPA grants an areawide 

exemption under CAA section 182(f). 

15We note that we received a comment alleging 

that CAA section 176A(a)(2) applies to Maine’s 

petition by virtue of the reference to that section in 

CAA section 184(a). We address that comment 

below in the Responses to Comment section. 

16One commenter asserted that the technical 

bases relied upon by the Agency in its proposal 

were ‘‘inadequate to the task’’ of analyzing Maine’s 

petition, because those bases assumed the 

continued application of existing OTR controls. We 

address that comment in section III.B of this notice 

and in the Response to Comments (RTC) document 

for this action. Another commenter asserted that the 

EPA’s interpretation of controls required us to 

articulate how CAA section 110(l) demonstrations 

would be analyzed in the future. We address that 

comment in Section III.B of this notice and the RTC 

document for this action. 

rules to apply nonattainment new 

source review (NNSR) and reasonably 

available control technology (RACT) 

(pursuant to CAA section 182(b)(2)) 

provisions for major VOC sources. 

Under CAA section 184(b)(2) states 

must also implement Stage II gasoline 

refueling vapor recovery programs, 

incremental to vehicle Onboard 

Refueling Vapor Recovery 

achievements, or measures that achieve 

comparable emissions reductions for 

both attainment and nonattainment 

areas.12

Section 182(f) of the CAA requires 

states to apply the same requirements to 

major stationary sources of NOX as are 

applied to major stationary sources of 

VOCs under subpart 2. Thus, the same 

NNSR and RACT requirements that 

apply to major stationary sources of 

VOC in the OTR also apply to major 

stationary sources of NOX.13 CAA 

section 182(f) provides for a NOX

waiver, or an exemption to the NOX

requirements, where the Administrator 

determines that such NOX reductions 

would not contribute to the attainment 

of the NAAQS in an area. Areas granted 

a NOX waiver under CAA section 182(f) 

may be exempt from certain 

requirements of the EPA’s motor vehicle 

I/M program regulations and from 

certain federal requirements of general 

and transportation conformity.14

C. Legal Standard for This Action 

The EPA proposed to interpret the key 

terms in CAA section 176A(a)(2) (i.e., 

‘‘control of emissions . . . will not 

significantly contribute to the 

attainment of the standard’’ and ‘‘in any 

area in the region’’) within the context 

of and consistently with other parts of 

the CAA that govern the interstate 

transport of ozone pollution, taking into 

account relevant facts and 

circumstances and the EPA’s past 

approaches to addressing interstate 

ozone transport. Specifically, because of 

CAA section 176A(a)(2)’s use of the 

phrase ‘‘significantly contribute to [ ] 

attainment,’’ the EPA proposed to look 

to its prior interpretations of the 

interstate pollution transport provision, 

often referred to as the ‘‘good neighbor’’ 

provision, at section 110(a)(2)(D)(i)(I) of 

the CAA, and the 4-step interstate 

transport framework the Agency has 

applied to analyze significant 

contributions under that provision in 

various regional interstate transport 

rules, to guide the Agency’s analysis in 

determining whether Maine had met the 

necessary condition for removal from 

the OTR.15 86 FR 23312–13. 

As such, we proposed to interpret the 

inquiry under CAA section 176A(a)(2) 

as permitting the EPA to remove a state 

or a portion of a state from a transport 

region whenever the Administrator has 

reason to believe that the state’s 

continued inclusion in the transport 

region will not be required for 

attainment in the transport region, i.e., 

that the petitioning state is not 

significantly contributing to air quality 

problems in the region and will not so 

contribute if the state is removed from 

the OTR. We received no adverse 

comments on this aspect of our 

interpretation, and we are therefore 

retaining this interpretation for 

purposes of the final approval. 

We also proposed an interpretation of 

the phrase ‘‘control of emissions in that 

state or portion of that state pursuant to 

this section.’’ The EPA proposed that 

‘‘controls’’ refers to new controls that 

would be required under CAA section 

184(b) if the state or portion of the state 

were to remain in the OTR, as opposed 

to controls that the state has already 

adopted as required by the CAA due to 

its inclusion in the OTR. We stated that 

interpreting ‘‘controls’’ in this manner 

gives effect to the forward-looking 

nature of the provision, which asks the 

Administrator to analyze whether 

removal of the state or portion of the 

state from the OTR ‘‘will’’ have the 

effect of contributing to air quality 

problems in any area in the OTR. We are 

finalizing this interpretation.16

We proposed to interpret CAA section 

176A(a)(2)’s use of the phrase ‘‘any area 

in the region,’’ which we used to 

establish the geographic scope of our 

significant contribution analysis, to 

mean all existing areas in the OTR, 

including areas within the petitioning 

state. We also took comment on an 

alternative interpretation wherein our 

analysis would be limited to interstate 

impacts, as opposed to impacts within 

a state’s own borders. We received two 

comments supporting the broader 

interpretation, i.e., that the phrase 

should be read to mean all areas in the 

existing OTR. The EPA will continue to 

assume for purposes of our final 

analysis that the phrase ‘‘any area in the 

region’’ includes any areas within the 

State of Maine in addition to areas of the 

OTR beyond Maine’s borders. Because 

our analysis is that Maine’s emissions 

will not significantly contribute to any 

nonattainment receptors in the OTR, 

including within its own borders, at this 

time we need not decide whether it 

would be appropriate to adopt a 

narrower interpretation of the phrase as 

limited to areas beyond the home state’s 

borders. 

In summary, we proposed to interpret 

CAA section 176A(a)(2) in a manner 

consistent with the EPA’s 4-step 

interstate transport framework, and we 

retain that proposed interpretation for 

purposes of this final action. Applying 

that framework to the question 

presented by CAA section 176A(a)(2), 

we proposed to interpret the inquiry as 

requiring the Administrator to identify 

whether there are ambient air 

monitoring sites in the OTR that either 

are projected to be in nonattainment 

based on modeling data, or potentially 

struggle with maintenance or are 

currently violating the NAAQS based on 

monitored data, and whether the area 

petitioned to be removed from the 

transport region contributes below one 

percent of the NAAQS to those 

monitors. We retain that interpretation 

for purposes of this final rule. 

D. Previous Actions 

Consistent with the 1990 CAA 

Amendments, nine Maine counties were 

designated as nonattainment of the nowrevoked 1979 1-hour NAAQS (0.12 parts 

per million (ppm)). York, Cumberland, 

Sagadahoc, Androscoggin, Kennebec, 

Knox, and Lincoln Counties were 

classified as Moderate nonattainment 

areas. Waldo and Hancock Counties 

were classified as Marginal 

nonattainment areas. 

Maine had two nonattainment areas 

under the now-revoked 1997 8-hour 

ozone standard. The Portland Ozone 

Nonattainment area consisted of 56 

cities and towns in York, Cumberland, 

and Sagadahoc Counties, along with the 

town of Durham in Androscoggin 

County, and was classified as Marginal 


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17Transportation and general conformity 

requirements only apply in nonattainment areas 

and areas redesignated to attainment with an 

approved CAA section 175A maintenance plan. See 

CAA section 176(c)(5). Transportation and general 

conformity do not apply in attainment areas in the 

OTR. 

18The EPA’s I/M rule was established on 

November 5, 1992 (57 FR 52950). The EPA made 

significant revisions to the I/M rule on September 

18, 1995 (60 FR 48035) and on July 25, 1996 (61 

FR 39036). Maine is subject to the requirements of 

the CAA for an I/M program in the Portland, Maine 

area. 

19Back trajectory analyses use interpolated 

measured or modeled meteorological fields to 

estimate the most likely central path over 

geographical areas that an air parcel travels before 

reaching a specific location at a given time. 

for the 1997 ozone standard. The 

Hancock, Knox, Lincoln, and Waldo 

Counties Ozone Nonattainment Area 

(also known as the Midcoast area) 

consisted of 55 coastal towns and 

islands in Hancock, Knox, Lincoln, and 

Waldo counties and was designated as 

nonattainment under Subpart 1 for the 

8-hour ozone standard. Maine was 

designated ‘‘Attainment/Unclassifiable’’ 

statewide for both the 2008 and 2015 8- 

hour ozone standards of 0.075 ppm and 

0.070 ppm, respectively. 

As previously discussed, Section 

184(b) of the CAA established certain 

control requirements that each state in 

the OTR is required to implement 

within the state. Section 182(f) of the 

CAA Amendments allows for the 

suspension of the OTR stationary source 

NOX requirements based on a 

demonstration that additional NOX

reductions would not produce net ozone 

air quality benefits in the OTR. Maine 

has petitioned for and has been granted 

the following CAA section 182(f) NOX

waivers. 

On December 26, 1995 (60 FR 66748), 

the EPA approved an exemption request 

for the Northern Maine area from CAA 

section 182(f) NOX requirements. This 

action exempted the Oxford, Franklin, 

Somerset, Piscataquis, Penobscot, 

Washington, Aroostook, Hancock and 

Waldo counties from the requirements 

to implement NOX control measures for 

existing stationary sources, NNSR for 

new sources and modifications that are 

major for NOX, NOX RACT 

requirements, the NOX-related general 

conformity provisions, and the NOXrelated transportation conformity 

provisions now contained in 40 CFR 

93.119.17

On February 3, 2006 (71 FR 5791), the 

EPA approved a request for an 

exemption for a similar area in northern 

Maine (specifically Aroostook, Franklin, 

Oxford, Penobscot, Piscataquis, 

Somerset, Washington, and portions of 

Hancock and Waldo Counties) under the 

1997 ozone standard. 

On July 29, 2014 (78 FR 43945), the 

EPA approved 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 

for the 2008 ozone standard. The CAA 

does not provide a similar VOC waiver 

process, and major stationary sources of 

VOC remain subject to NNSR and RACT 

requirements throughout the entire state 

of Maine. 

In addition to the NOX waivers under 

CAA section 182(f), Maine requested 

and was granted an OTR restructuring 

with respect to enhanced I/M 

requirements.18 (66 FR 1873; January 

10, 2001) While the Maine I/M rule did 

not meet all requirements of the EPA’s 

final rule for enhanced I/M, the EPA 

determined that the implementation of 

an enhanced I/M program in Maine in 

place of the approved Maine I/M rule 

would not significantly contribute to 

attainment in any other state in the 

OTR. 

E. The CAA Section 176A Petition From 

Maine 

On February 24, 2020, the state of 

Maine petitioned the EPA pursuant to 

CAA section 176A(a)(2) for the removal 

of the state of Maine from the OTR with 

the exception of the 111 towns and 

cities listed in Table 1 comprising the 

Portland and Midcoast Ozone Areas. 

TABLE 1—MAINE TOWNS AND CITIES TO REMAIN IN THE OZONE TRANSPORT REGION

Androscoggin County (includes only the following town): Durham. 

Cumberland County (includes only the following towns and cities): Brunswick, Cape Elizabeth, Casco, Cumberland, Falmouth, Freeport, Frye Island, Gorham, Gray, Harpswell, Long Island, New Gloucester, North Yarmouth, Portland, Pownal, Raymond, Scarborough, South Portland, 

Standish, Westbrook, Windham, and Yarmouth. 

Hancock County (includes only the following towns and cities): Bar Harbor, Blue Hill, Brooklin, Brooksville, Cranberry Isles, Deer Isle, 

Frenchboro, Gouldsboro, Hancock, Lamoine, Mount Desert, Sedwick, Sorrento, Southwest Harbor, Stonington, Sullivan, Surry, Swans Island, 

Tremont, Trenton, and Winter Harbor. 

Knox County (includes only the following towns and cities): Camden, Criehaven, Cushing, Friendship, Isle au Haut, Matinicus Isle, Muscle Ridge 

Shoals, North Haven, Owls Head, Rockland, Rockport, St. George, South Thomaston, Thomaston, Vinalhaven, and Warren. 

Lincoln County (includes only the following towns and cities): Alna, Boothbay, Boothbay Harbor, Breman, Bristol, Damariscotta, Dresden, 

Edgecomb, Monhegan, Newcastle, Nobleboro, South Bristol, Southport, Waldoboro, Westport, and Wiscasset. 

Sagadahoc County (includes all towns and cities). 

Waldo County (includes only the following town): Islesboro. 

York County (includes only the following towns and cities): Alfred, Arundel, Berwick, Biddeford, Buxton, Dayton, Eliot, Hollis, Kennebunk, 

Kennebunkport, Kittery, Limington, Lyman, North Berwick, Ogunquit, Old Orchard Beach, Saco, Sanford, South Berwick, Wells, and York. 

The Maine Department of 

Environmental Protection provided an 

analysis purporting to demonstrate that 

Maine’s emissions have an insignificant 

effect on nonattainment for the 8-hour 

ozone NAAQS in other states and in 

those areas in Maine that will remain in 

the OTR. Maine’s analysis consisted of 

modeling ‘‘back trajectories’’ for ozone 

exceedance days in the 2016–2018 

period recorded at monitoring locations 

in southern New England and in Maine, 

the EPA’s source-apportionment 

modeling results and emissionsinventory data for Maine and the OTR.19

A more detailed description of the 

technical analysis included in Maine’s 

petition can be found in Section V.A of 

the proposal. 

III. The EPA’s Final Response to the 

CAA Section 176A Petition From Maine 

A. The EPA’s Assessment of Maine’s 

CAA Section 176A Petition 

On May 3, 2021, the EPA proposed to 

grant the CAA section 176A petition 

from Maine (86 FR 23309). The EPA 

considered monitoring data, technical 

demonstrations, and impacts to air 

quality control regimes in the areas to be 

removed and proposed to grant Maine’s 

petition on the basis that the portion of 

the state requested to be removed from 

the OTR does not contribute to a 

violation of any ozone standard in any 

area of the OTR, and that further control 

of emissions from that portion of Maine 

under CAA section 184 will not 

significantly contribute to the 

attainment of any ozone standard in any 

area of the OTR. The EPA’s basis for this 


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final action to grant Maine’s petition has 

not fundamentally changed from the 

proposal. The EPA continues to believe 

that the portion of the state requested to 

be removed from the OTR does not 

contribute to a violation of any ozone 

standard in any area of the OTR, and 

that further control of emissions from 

that portion of Maine will not 

significantly contribute to the 

attainment of any ozone standard in any 

area of the OTR. 

In support of the EPA’s decision to 

grant the petition, the EPA has 

determined that all areas of the state 

proposed for removal from the OTR 

have been designated in attainment of 

the ozone NAAQS since 2004, and the 

entire state of Maine has been 

designated as in attainment with the 

ozone NAAQS since 2007. Additionally, 

technical demonstrations from Maine’s 

Hybrid Single-Particle Lagrangian 

Integrated Trajectory (HYSPLIT) back 

trajectory analysis, the EPA’s ozone 

source apportionment modeling, and 

emissions trends all indicate that 

emissions from the areas requested to be 

removed from the OTR will not 

significantly contribute to 

nonattainment or maintenance problems 

in any area in the OTR, either within or 

outside the state of Maine, in the 

foreseeable future. Furthermore, 

removing those areas from the OTR will 

not result in unchecked relaxation of 

existing NOX and VOC controls 

included in Maine’s SIP or revoke 

permitted emissions limits at existing 

facilities. For these reasons, the EPA 

believes that a substantial increase in 

ozone precursor emissions resulting 

from this action is highly unlikely in 

any area of Maine or the OTR. A full 

description of the EPA’s technical 

assessment can be found in Section V.B. 

of the proposal. The EPA’s full 

assessment of the provisions that will be 

impacted as a result of granting the 

petition can be found in Section IV.B of 

the proposal. 

B. Public Comments 

The EPA received 11 comments 

during the public comment period on 

the EPA’s proposal to grant Maine’s 

petition. This section addresses 

significant comments received regarding 

the need for future ozone monitoring in 

the areas to be removed from the OTR, 

the potential for final approval of the 

petition to increase ozone levels in the 

OTR, and potential adverse impacts that 

could result if removing part of Maine 

from the OTR were to increase ozone 

levels. The remaining comments are 

addressed in a separate Response to 

Comments (RTC) document found in the 

docket for this action. 

I. Comments Regarding Future 

Monitoring 

Comment: Several commenters note 

that there are no future plans to monitor 

for ozone in the areas to be removed 

from the OTR, and that if the decision 

to approve the petition is finalized, the 

EPA should require future monitoring in 

those areas. One commenter asserts that 

the Agency should require quarterly or 

bi-annual monitoring, particularly in 

areas where there could be more 

industry development. Another 

commenter asserts that the EPA should 

establish an assessment plan to be 

carried out every few years to ensure 

that the ozone stays within the 

acceptable range. One commenter notes 

that currently there is limited 

monitoring in the areas to be removed 

from the OTR and that weakening 

requirements for ozone precursor 

pollution controls in these areas without 

ensuring that there is a monitoring 

system in place to track changes in 

ozone formation resulting from that 

decision leaves the EPA no way to 

determine what the impacts of this 

decision are. 

Response: The EPA disagrees with 

commenters that there are no plans for 

future ozone monitoring in the areas to 

be removed from the OTR and disagrees 

that the monitoring system currently in 

place is insufficient to inform the 

Agency’s decision making on this 

petition. Maine’s ozone monitoring 

obligations as set out in 40 CFR part 58 

are not impacted by whether portions of 

the state are removed from the OTR. 

Minimum monitoring requirements for 

ozone are based on Metropolitan 

Statistical Areas/Consolidated 

Metropolitan Statistical Areas (MSA/ 

CMSA) population, and how close an 

area’s design value concentrations of a 

pollutant are to the NAAQS. In 

addition, every state is required to have 

at least one NCore site that must 

measure ozone year-round. Currently, 

there are 14 ozone monitoring sites 

operating in Maine with eight 

monitoring sites located in the portion 

of the state proposed to be removed 

from the OTR. Of these eight monitoring 

sites, one is operated by the EPA’s 

CASTNET program, and two are 

operated by independent tribal nations. 

For these three monitoring sites, it is not 

within the state’s purview to consider 

discontinuation. Although Maine’s 

current ozone monitoring network 

already exceeds the minimum 

regulatory requirements set out in 40 

CFR part 58, according to 40 CFR part 

58.10, any modifications to Maine’s 

current ozone monitoring network must 

be proposed by Maine and approved by 

the EPA Regional Administrator. In 

addition, every 5 years, Maine is 

required to submit an assessment to the 

EPA to determine if its current 

monitoring network ‘‘meets the 

monitoring objectives defined in 

appendix D to this part, whether new 

sites are needed, whether existing sites 

are no longer needed and can be 

terminated, and whether new 

technologies are appropriate for 

incorporation into the ambient air 

monitoring network.’’ If, as commenters 

postulate, emissions of ozone precursors 

were to increase substantially as a result 

of the approval of this petition in an 

area that is not currently monitored, the 

location and magnitude of new 

emissions sources could be evaluated at 

that 5-year interval to determine 

whether their existence warrants 

additional ozone monitors or any other 

modifications to the ozone monitoring 

network. 

The EPA also notes that all ozone 

monitoring data in locations for which 

the petition requests be removed from 

the OTR have 2020 design values 

substantially below the current ozone 

NAAQS of 0.070 ppm. The highest 

design value among these ozone 

monitors is 0.057 ppm. There is no 

indication, and commenters have not 

cited evidence, that ozone levels in 

areas of Maine away from the 

monitoring locations differ substantially 

from those at the locations of the 

monitors. 

TABLE 2—TABLE OF 2018, 2019, AND 2020 DVs FOR MONITORING SITES IN ME WITH NON-ZERO DVs 

AQS site ID County name CBSA name Local site name 2016–2018 

DV 

2017–2019 

DV 

2018–2020 

DV 

Removed 

from 

OTR? 

230010014 ........ Androscoggin .......... Lewiston-Auburn ..... Durham Fire Station 59 57 53 N 

230031100 ........ Aroostook ............... ................................. Micmac Health Dept 51 51 51 Y 

230039991 ........ Aroostook ............... ................................. Ashland ................... 52 53 53 Y 


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TABLE 2—TABLE OF 2018, 2019, AND 2020 DVs FOR MONITORING SITES IN ME WITH NON-ZERO DVs—Continued 

AQS site ID County name CBSA name Local site name 2016–2018 

DV 

2017–2019 

DV 

2018–2020 

DV 

Removed 

from 

OTR? 

230052003 ........ Cumberland ............ Portland .................. Cape Elizabeth Two 

Lights.

65 64 62 N 

230090102 ........ Hancock .................. ................................. Top of Cadillac 

Mountain.

70 69 65 N 

230090103 ........ Hancock .................. ................................. McFarland Hill ........ 63 64 60 N 

230112001 ........ Kennebec ............... Augusta-Waterville Gardiner HS ........... 62 60 55 Y 

230130004 ........ Knox ....................... ................................. Marshall Point Lighthouse.63 61 60 N 

230173002 ........ Oxford ..................... ................................. Bethel Smith Farm 

Road.

0 57 54 Y 

230194008 ........ Penobscot ............... Bangor .................... Summit of Rider 

Bluff.

57 56 55 Y 

230290019 ........ Washington ............. ................................. Jonesport Public 

Landing.

61 60 57 Y 

230310038 ........ York ........................ Portland .................. West Buxton Fire 

Dept.

59 57 53 N 

230310040 ........ York ........................ Portland .................. Shapleigh Ball Park 61 60 56 Y 

230312002 ........ York ........................ Portland .................. Kennebunkport ....... 66 64 64 N 

II. Comments Regarding the Potential for 

This Action To Increase Ozone Levels in 

the OTR, and Potential Adverse Impacts 

That Could Result if Removing Part of 

Maine From the OTR Were To Increase 

Ozone Levels in the OTR 

Comment: One commenter asserts 

that Maine’s petition does not establish 

a ‘‘reason to believe’’ that all areas 

currently within the OTR in Maine will 

not see significant additional ozone 

precursor emissions due to the EPA’s 

approval of Maine’s request. The 

commenter contends that the analyses 

relied on by Maine and the EPA are all 

based on the continued application of 

existing OTR controls, including the 

nonattainment new source review 

(NNSR) requirements and offsets. The 

commenter states that the petition offers 

no information about expected 

additional new or expanded existing 

sources in the area of Maine to be 

removed from the OTR, nor does the 

petition assess what emissions increases 

or ozone levels would be expected from 

allowing new or expanded existing 

stationary sources without requiring 

Lowest Achievable Emissions Rate for 

NOX and VOC emissions, and providing 

offsets of at least 1.15:1. The commenter 

claims that the EPA’s failure to consider 

the consequences of approving Maine’s 

petition (i.e., the likely increase in new 

and modified industrial sources in 

inland Maine and the accompanying 

increase in ozone precursor emissions 

and in ozone concentrations) constitutes 

an abuse of the EPA’s discretion. 

The commenter notes that, should 

Maine’s ozone precursor emissions 

increase, the state may experience 

nonattainment of the current 70 ppb 

standard or of a more stringent standard. 

The commenter further asserts that if 

ozone levels increase enough to trigger 

nonattainment status (under the current 

standard or future standards), that 

would require all nonattainment 

provisions to be reinstated, including 

OTR requirements that have been 

waived on the basis that much of the 

state is in attainment and create 

regulatory uncertainty for industry. 

Furthermore, the commenter asserts that 

removing parts of the state from the 

OTR will cause Maine to lose the mantle 

of ‘‘clean hands.’’ The commenter states 

that Maine’s longstanding status in the 

OTR has shown that the state ‘‘did its 

part to ensure that areas within the State 

and downwind are also clean’’ but that 

leaving the OTR will ‘‘eliminate that 

good neighbor behavior’’ and ultimately 

be unfair to other states in the OTR and 

their neighbors in Canada. The 

commenter also points to maximum 8- 

hour average concentrations recorded 

during the June 6–7, 2021, high ozone 

event in Maine and asserts that climate 

change will exacerbate the problem of 

high ozone throughout the Mid-Atlantic 

and Northeast states, and further 

contribute to high ozone levels in 

Maine. 

Multiple commenters also note that 

the proposal, if finalized, could be 

harmful to health and the environment 

if emissions were to increase as a result 

of approving the petition. One 

commenter notes that some of the 

counties and cities that would be 

removed include farmland and asserts 

that prolonged exposure to ozone would 

decrease the growth and production of 

crops and lead to economic instability 

for farmers in those areas. Another 

commenter states that the EPA failed to 

address potential adverse effects of its 

action on plant and animal life in parks, 

National Wildlife Refuges, and 

Wilderness Areas in Maine, and asserts 

that the current secondary ozone 

standard is not sufficiently protective of 

plants (including crops), trees, and 

animals. The commenter also cites the 

adverse effects of ozone exposure on the 

black cherry tree in Maine and on 

wilderness area ecosystems, which the 

commenter cites as important for the 

carbon storage and other climate 

benefits these areas provide. The 

commenter further asserts that the EPA 

has failed to consider possible 

implications of its action on air quality 

and regional haze at the coastal 

Moosehorn Baring and Moosehorn 

Edmunds Wilderness Areas in 

Washington County, or in the 

downwind Roosevelt-Campobello 

International Park, all U.S. Class I areas. 

Response: The EPA does not agree 

that there is insufficient information to 

finalize the approval of Maine’s request. 

The analytical information described in 

the proposal first identified air quality 

monitors located in the OTR that either 

measured elevated ozone concentrations 

or were projected to have design values 

that violated the NAAQS or struggled to 

maintain the NAAQS. The analyses then 

used a HYSPLIT trajectory model and 

photochemical source apportionment 

modeling to identify whether Maine 

contributed to those problem monitors. 

We acknowledge that this information 

did not attempt to speculate what 

sources might locate in Maine or make 

modifications based on the regulatory 

changes that would result from this final 

action (in particular, as raised by 

commenter, the change from NNSR 


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20Trends in NOX and VOC for individual source 

sectors for each county in Maine can be found in 

the docket for this rule. 

21The development of emissions data for 2016, 

2023, and 2032 is described in the 2016v2 North 

American Emissions Modeling Platform, https://

www.epa.gov/air-emissions-modeling/2016v2- 

platform. 

requirements to prevention of 

significant deterioration (PSD) 

requirements). However, other 

information in the record, including 

current ozone concentrations in the 

state and projected emissions trends, 

informs the EPA’s determination that 

the portion of the state requested to be 

removed from the OTR does not 

contribute to a violation of any ozone 

standard in any area of the OTR, and 

that further control of emissions from 

that portion of Maine will not 

significantly contribute to the 

attainment of any ozone standard in any 

area of the OTR. All areas of the state 

proposed for removal from the OTR 

have been designated in attainment of 

the ozone NAAQS since 2004, and the 

entire state of Maine has been 

designated as in attainment with the 

ozone NAAQS since 2007. Our 

evaluation of emissions trends and 

applicability of other existing regulatory 

control programs that would still apply 

to the areas removed from the OTR, 

discussed in more detail below, indicate 

that a substantial increase in ozone 

precursor emissions resulting from this 

action is highly unlikely. 

To begin, the projected emissions in 

Maine indicate steep declines in 

emissions of ozone precursors 

associated with on-the-books emissions 

controls, including mobile source 

controls that will continue to provide 

emissions reductions throughout the 

entire State regardless of whether 

portions of the state remain in the OTR 

or are removed from the OTR. Emissions 

trends of ozone season NOX and VOC in 

the counties to be fully removed from 

the OTR are provided in Table 3.20 21

The data indicate that NOX and VOC 

emissions will continue to trend 

downward in these counties, primarily 

due to reductions in onroad mobile 

sources. For the counties to be fully 

removed from the OTR, the emissions of 

ozone season NOX from onroad mobile 

sources are projected to decline by 70 

percent from 2016 to 2032, as compared 

to 22 percent for other anthropogenic 

source sectors. Emissions of VOCs from 

onroad mobile sources in the counties to 

be fully removed from the OTR are 

projected to decline by 53 percent from 

2016 to 2032, as compared to 34 percent 

for other anthropogenic source sectors. 

TABLE 3—OZONE SEASON NOX AND VOC EMISSIONS IN COUNTIES TO BE FULLY REMOVED FROM THE OTR 

2016 2023 2032 

NOX: 

Onroad Mobile ...................................................................................................................... 3,318 1,581 990 

Other Sectors ....................................................................................................................... 6,712 5,525 5,212 

Total ............................................................................................................................... 10,030 7,106 6,202 

VOC: 

Onroad Mobile ...................................................................................................................... 1,058 670 499 

Other Sectors ....................................................................................................................... 7,439 5,527 4,883 

Total ............................................................................................................................... 8,498 6,197 5,381 

On the books mobile source controls 

include: Control of Air Pollution From 

Motor Vehicles: Tier 3 Motor Vehicle 

Emission and Fuel Standards (See 79 FR 

23414, April 28, 2014); Control of Air 

Pollution from New Motor Vehicles: 

Heavy-Duty Engine and Vehicle 

Standards and Highway Diesel Fuel 

Sulfur Control Requirements (See 66 FR 

5002, January 18, 2001); and Control of 

Emissions of Air Pollution From 

Nonroad Diesel Engines and Fuel (See 

69 FR 38958, June 29, 2004). If 

additional national mobile source rules 

are adopted and implemented in the 

future, those will also provide emissions 

reductions throughout the entire state 

regardless of OTR status. 

As noted at proposal, Maine’s current 

modeled contributions to nonattainment 

or maintenance issues anywhere in the 

OTR are also relevant. The state’s 

highest modeled contribution to any 

receptor in the OTR that is expected to 

struggle with attainment or maintenance 

of the 2015 ozone NAAQS is only 0.01 

ppb, i.e., 0.01 percent of the 70 ppb 

standard. This suggests that the ozone 

contribution from anthropogenic ozone 

precursor emissions in Maine would 

have to increase by a factor of 70 for 

Maine to potentially contribute above 

the one percent threshold to an existing 

or projected nonattainment or 

maintenance problem in the OTR. This 

observation is made merely to provide 

an indication of the general magnitude 

of emissions increases from Maine that 

would be needed for existing trends in 

improving air quality to be halted and 

reversed to the extent that such an 

increase may create new air quality 

problems closer to, or within, Maine. 

We cannot predict what emissions 

increases or ozone levels would be 

expected based on regulatory changes 

associated with the EPA’s approval of 

Maine’s request. But the existing 

baseline of our analysis of Maine’s 

emissions to other states informs our 

judgment that it is not reasonable to 

expect emissions increases on this scale 

or anything like it. 

As also discussed in the proposal, we 

recognize that by approving Maine’s 

request there would be consequent 

changes to the New Source Review 

(NSR) preconstruction permitting 

program in the state. However, while 

commenter is correct that lowest 

achievable emission rate (LAER) and the 

1.15:1 emissions offset requirements 

would no longer apply to new major 

stationary sources and major 

modifications in the areas of the state 

being removed from the OTR, it is not 

the case these new and modified 

sources could construct without any 

regulatory safeguards in place. 

Specifically, the areas being removed 

from the OTR will be subject to Maine’s 

PSD and minor NSR permitting 

requirements for ozone precursors, NOX

and VOC. Both the PSD and minor NSR 

permitting programs require that 

permitting authorities assess the impact 

of the proposed emissions increases 

from new and modified sources on the 

applicable NAAQS, as required by CAA 

sections 165(a)(3)(B) and 110(a)(2)(C), 

prior to construction. The PSD program, 

which will apply to major stationary 

sources and major modifications in the 

areas removed from the OTR, requires a 


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22With respect to commenter’s concern that 

Maine’s partial removal from the OTR would 

interfere with its ‘‘clean hands’’ reputation or its 

relationship to other states and Canada, we note 

that under the cooperative federalism structure of 

the Act, that is a consideration for the state rather 

than the EPA. Under CAA section 176A(a), the 

Governor of a State may submit a petition to be 

removed or partially removed from a transport 

region, and the EPA must act on it. 

23The granting of this petition is not itself a 

revision to Maine’s SIP, and all EPA-approved 

elements of the state’s SIP remain in place and 

enforceable. 

control technology review, called Best 

Available Control Technology (BACT), 

and an air quality analysis to 

demonstrate that the proposed new or 

modified emissions source will not 

cause or contribute to a violation of any 

NAAQS or PSD increment. Like LAER, 

BACT is a case-by-case decision for the 

facility and examines state-of-the-art 

pollution controls, although for BACT, 

the permitting authority considers the 

energy, environmental, and economic 

impacts and other costs, that are not 

considered in LAER determinations. 

However, depending on the type of 

facility and the cost effectiveness of 

controls, or other factors, there may not 

always be significant differences 

between the level of control that would 

be required under BACT versus LAER. 

Moreover, for much of the area being 

removed from the OTR in Maine, the 

change from LAER to BACT for NOX for 

new and modified sources is not new. 

As discussed in the proposal, Maine has 

applied for and obtained NOX waivers 

under CAA section 182(f) for nearly 

every ozone standard (all except the 

most recent 2015 ozone NAAQS). See 

86 FR 23315. Consequently, for the 1979 

1-hour, 1997 8-hour, and 2008 8-hour 

ozone NAAQS, many of the counties at 

issue in this action were exempt from 

requirements to implement NNSR for 

new sources and modifications that are 

major for NOX, NOX RACT 

requirements, the NOX-related general 

conformity provisions, and the NOXrelated transportation conformity 

provisions. Id. With these waivers in 

place, with respect to NSR, new sources 

and modifications were therefore 

already subject to BACT for NOX

control, as they will be with finalization 

of this rule. For minor NSR sources and 

modifications in areas being removed 

from the OTR, the permitting 

requirements also will not change. 

These smaller new sources and 

modifications will continue to be 

subject to Maine’s minor NSR 

permitting program, which does not 

have different requirements based on a 

location’s attainment status. An 

important feature of Maine’s minor NSR 

program is that its control technology 

standard is also BACT, so it applies the 

same control review that Maine requires 

for larger sources that are subject to 

PSD. (This is more stringent than federal 

requirements, since neither the CAA nor 

the EPA’s regulations specify a 

minimum control requirement for minor 

NSR permits.) In addition, Maine’s 

minor NSR program requires air quality 

impact analyses for new minor sources 

and minor modifications if their 

emissions exceed 50 tons per year of 

NOX, and Maine can require air quality 

analyses even for permits under 50 tons 

per year of NOX. Finally, granting 

Maine’s petition does not materially 

alter opportunities for public 

involvement in the permitting process, 

as Maine’s permitting regulations 

contain procedures for the opportunity 

for public participation for permitting 

actions for both major and minor 

stationary sources under their minor 

NSR, PSD, and NNSR permitting 

regulations. 

Consequently, it is not the case that 

the changes associated with NSR 

requirements resulting from the removal 

of the areas from the OTR are as drastic 

as commenter suggests. For VOCs, 

NNSR requirements will be replaced by 

PSD for sources subject to major NSR, 

and the PSD program has already long 

been the primary set of controls for new 

or modified sources for NOX in much or 

all of Maine under the state’s CAA 

section 182(f) NOX waivers for every 

ozone standard except the 2015 ozone 

NAAQS. Furthermore, the minor NSR 

program will continue to apply BACT 

and, in many cases, an air quality 

assessment to smaller sources seeking 

permits to construct. Therefore, even 

though we cannot precisely predict 

whether and to what extent emissions 

will increase as a result of sources 

choosing to construct or modify in the 

area to be removed from the OTR, the 

information we have does not indicate 

that emissions will drastically increase, 

as they would likely need to do in order 

to have significant impacts on 

nonattainment in any area of the OTR. 

The projected ongoing downward 

emissions trends are due primarily to 

national mobile source measures that 

will continue to take effect, and new 

and modified stationary sources will be 

subject to PSD BACT for NOX controls, 

which has already been the primary 

regulatory regime for much of the area 

being removed from the OTR for 

decades. 

Because the EPA does not agree that 

it is reasonable to assume drastic 

emissions increases as a result of the 

final action, we also do not think it is 

reasonable to assume that the health, 

environmental, and relational 22

consequences raised by commenters 

would come to pass. As indicated in 

Table 2, all air quality monitors in the 

areas of Maine that are being removed 

from the OTR are not only meeting the 

current 70 ppb 2015 ozone NAAQS; 

these monitors are all 10 or more ppb 

below the 70 ppb NAAQS. Further, 

health and environmental effects of air 

pollution are addressed in the NAAQS 

setting and revision process rather than 

in the implementation of the NAAQS. 

CAA section 109 requires the EPA to set 

the primary NAAQS at a level to protect 

the public health with an adequate 

margin of safety, and the secondary 

NAAQS at a level to protect public 

welfare from any known or anticipated 

adverse effects. In assessing impacts to 

public welfare, the EPA looks at damage 

to trees and crops. Given the level of 

Maine’s contributions to any 

nonattainment or maintenance problems 

in the OTR and given the current air 

quality at the monitors located in the 

portions of the state to be removed from 

the OTR, it is not necessary to 

separately analyze in the first instance 

each of the potential public health and 

welfare consequences commenters raise 

concerns about. These concerns are not 

enumerated as factors the Agency must 

consider under CAA section 176A(a)(2), 

and all are premised on commenters’ 

speculation—with which we disagree— 

that ozone precursor emissions in Maine 

will drastically increase as a result of 

the regulatory changes associated with 

this action. 

In addition to the factual 

circumstances above that support the 

EPA’s determination that emissions are 

not likely to increase drastically as a 

result of this action, we also note that 

the CAA’s other structural requirements 

and protections will continue to apply 

in Maine. Any revisions to Maine’s SIP 

would be subject to CAA section 110(l) 

anti-backsliding requirements.23 If the 

EPA revises the ozone standard in the 

future, any area determined to be 

violating that standard will be 

designated nonattainment with the 

attendant CAA requirements associated 

with that designation. Similarly, the 

issuance of any new NAAQS will also 

trigger Maine’s obligation to submit a 

SIP addressing its significant 

contributions to nonattainment or 

interference with maintenance in any 

other state under CAA section 

110(a)(2)(D)(i)(I). And finally, CAA 

section 184 and CAA section 176A 

clearly provide that the EPA retains its 

authority to revise membership of the 

OTR whenever the EPA has ‘‘reason to 

believe’’ a state or portion of a state is 


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significantly contributing to 

nonattainment. 

III. Comments Regarding Consistency 

With CAA Section 184 

Comment: One commenter asserts 

that the EPA misapplies the Chevron 

doctrine in its statutory interpretation 

by failing to discuss CAA section 184(a), 

which applies the removal and addition 

procedures of CAA section 176(a)(1) and 

(a)(2) to the OTR, ‘‘except to the extent 

inconsistent with the provisions of this 

section.’’ The commenter claims that the 

proposal to remove portions of Maine is 

inconsistent with CAA section 

184(b)(1)(B), which it interprets to 

require state-wide implementation of 

RACT for sources covered by a CTG, 

regardless of whether that portion of the 

state is in the OTR, because if the EPA’s 

proposal were finalized, Maine would 

only be required to have CTG RACT for 

those sources in the portions of the state 

remaining in the OTR. The commenter 

also claims that the proposal is 

inconsistent with CAA section 184(d), 

because that provision instructed the 

EPA to promulgate criteria for purposes 

of determining the contribution of 

sources in one area to concentrations of 

ozone in other areas that are 

nonattainment for ozone. The 

commenter asserts that because the EPA 

never promulgated such criteria, the 

EPA cannot grant Maine’s petition. 

Moreover, the commenter argues that 

the EPA cannot claim that it used the 

best available air quality modeling 

techniques and best available data in its 

proposal, because ‘‘[t]he determination 

here does not use OSAT/APCA. Instead, 

it relies on weaker analyses: HYSPLIT 

back-trajectories and emissions trends.’’ 

With respect to air quality monitoring, 

the commenter states that it is 

‘‘implausible’’ that the EPA’s 

promulgated air quality monitoring 

network requirements satisfy the 

requirement in section 184(d) to use the 

‘‘best available’’ air quality monitoring 

techniques. Finally, the commenter 

states that the EPA cannot claim that it 

is using the ‘‘best available’’ monitoring 

data for its proposal because more 

current data for all OTR states are 

available and argues that the EPA has 

provided no basis in its record that the 

ozone monitoring network criteria have 

been met. 

Response: The commenter is correct 

that CAA section 176A(a)(2) governs the 

Agency’s action on Maine’s request to 

remove part of its state from the OTR by 

virtue of CAA section 184(a)’s 

application of 176A(a)(2) to states in the 

OTR. However, we disagree with the 

commenter that granting Maine’s 

request is ‘‘inconsistent with the 

provisions of’’ CAA section 184. We 

respond to each of the commenter’s 

assertions on this point in turn. 

The commenter contends that to be 

‘‘consistent’’ with CAA section 184, 

whenever approving the removal of any 

portion of a state from the OTR under 

CAA section 176A(a)(2), the EPA would 

need to clearly require the state to 

prepare SIP submissions and require 

implementation of RACT for all sources 

of VOCs covered by a CTG throughout 

the entire state, regardless of whether 

those sources are located in the portions 

of the state located in the OTR. The 

commenter claims that ‘‘the plain 

language of section 184(b)(1)(B)’’ 

requires this by virtue of the reference 

in that provision to the ‘‘state’’ rather 

than to the area of the state in the OTR. 

We do not agree. We think the statutory 

context and legislative history support 

the EPA’s longstanding interpretation 

that the CAA section 184(b) SIP 

requirements for the OTR apply only 

within the OTR, and not in the portions 

of a state that are outside the region. We 

recognize that CAA section 184(b)(1)(B) 

could be read, as the commenter 

suggests, to impose VOC CTG RACT 

requirements statewide, even for 

sources that are not in the portions of 

states that are in the OTR. But we do not 

think this is the only, or even a better, 

reading of the statute. 

First, the vast majority of the 

jurisdictions comprising the OTR are 

entire states—of the 13 entities that 

make up the OTR (including the District 

of Columbia), 12 have their entire 

jurisdiction in the region. Only Virginia, 

of which a very small portion of the 

state is in the ‘‘Consolidated 

Metropolitan Statistical Area that 

includes the District of Columbia,’’ did 

not have its entire state boundary 

included in the OTR. It is therefore not 

surprising that in CAA section 

184(b)(1)(B), the statute would use the 

term ‘‘all sources . . . in the State’’ to 

describe the extent of the VOC RACT 

requirement even if what was intended 

was that the OTR requirements would 

apply only within the OTR. 

Second, the last sentence of CAA 

section 184(b) defines the threshold for 

major stationary sources ‘‘[f]or purposes 

of this section’’ and states that such 

sources are subject to the requirements 

that would apply ‘‘if the area’’ was 

classified as a Moderate ozone 

nonattainment area (emphasis added). 

This requirement, which imposes 

Moderate area requirements—including 

NOX RACT for major stationary 

sources—applies only to those areas of 

a state which are in the OTR. 

Commenter’s interpretation would 

therefore mean that Congress imposed a 

system of OTR controls that required 

statewide stationary source obligations 

for VOC CTG RACT but OTR-specific 

obligations for all other major stationary 

source requirements and I/M. We think 

it very unlikely that Congress would 

have set up a bifurcated approach in 

which stationary sources would be 

subject to some OTR requirements but 

not others, with no explanation in the 

legislative history (see below). 

Third, as the commenter notes, the 

EPA has been interpreting the OTR 

requirements in CAA section 184(b) to 

apply only to areas within the OTR 

since the 1990 Amendments were 

passed, and in the intervening 30 years, 

Congress has never indicated that the 

Agency’s interpretation was incorrect. 

See 57 FR 13527, n.10 (April 16, 1992) 

(‘‘Each state in a transport region must 

adopt VOC RACT regulations for 

sources located within that portion of 

the State included in a transport 

region[.]’’); id. (‘‘EPA interprets section 

176A as establishing a process whereby 

a portion of a State can be removed from 

the region and exempted from the 

requirements[.]’’). 

Fourth, we do not agree with the 

commenter that a comparison of the 

drafting of CAA sections 184(b)(1)(A) 

and (B) demonstrates that statewide 

CTG RACT is compelled regardless of 

OTR boundaries. The commenter 

emphasizes the statute’s use of the term 

‘‘areas’’ in CAA section 184(b)(1)(A) to 

assert that Congress could have used the 

term ‘‘areas’’ in CAA section 

184(b)(1)(B) had it intended to limit 

CTG RACT requirements to only those 

areas of a state that are within the OTR. 

But there is a more natural reason for 

the use of the term ‘‘areas’’ in CAA 

section 184(b)(1)(A)—that provision on 

its face is a requirement designed 

specifically for urban areas that 

experience relatively higher volumes of 

mobile sources. The provision states 

‘‘that each area in such State that is in 

an ozone transport region, and that is a 

metropolitan statistical area or part 

thereof with a population of 100,000 or 

more . . .’’ are subject to enhanced 

vehicle inspection and maintenance 

requirements. The use of the term 

‘‘area’’ in that provision naturally flows 

from the fact that this requirement is 

limited to metropolitan areas and 

linguistically fits with the second clause 

of the sentence—‘‘and that is a 

metropolitan statistical area.’’ This 

reason for the use of the term ‘‘area’’ in 

CAA section 184(b)(1)(A) is at least as 

plausible as the reasoning commenter 

puts forth. Commenter’s argument 

would have it that Congress intended— 

without any other indication in the 

statute or legislative history—to require 


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24See, e.g., Air Quality Modeling Technical 

Support Document for the NOX SIP Call, September 

23, 1998 (explaining the EPA’s use of two types of 

modeling to assess interstate contributions—stateby-state zero-out modeling using UAM–V and stateby-state source apportionment modeling using 

CAMx APCA), available at https://www.epa.gov/ 

sites/default/files/2020-10/documents/nox_sip.pdf; 

Air Quality Modeling Final Rule Technical Support 

Document, June 2011 (setting forth the EPA’s use 

of source apportionment techniques in CAMx air 

quality modeling to quantify interstate 

contributions), available at https://www.epa.gov/ 

sites/default/files/2017-06/documents/epa-hq-oar2009-0491-4140.pdf; Air Quality Modeling 

Technical Support Document for the Final Revised 

Cross-State Air Pollution Rule Update, March 2020 

(reiterating the EPA’s use of the OSAT/APCA 

technique in CAMx air quality modeling), available 

at https://www.epa.gov/sites/default/files/2021-03/ 

Continued 

just one of the OTR requirements to 

apply statewide, regardless of OTR 

status, while all other requirements in 

CAA section 184(b) are limited only to 

that area of the state in the OTR. 

Fifth, adopting commenter’s 

interpretation would also undercut the 

purpose of the authority granted to the 

EPA in CAA section 176A(a)(1) and (2) 

to add or remove portions of a state to 

the OTR. If one of the major, substantive 

OTR requirements applies statewide, 

without regard to which portions of that 

state were in the OTR or not, there 

would be little purpose to providing the 

Agency with the authority to tailor the 

boundaries of the OTR not to include 

entire states. While commenter may 

view the authority to tailor transport 

region boundaries as somehow 

‘‘inconsistent’’ with CAA section 184, 

Congress did just that when it included 

only the northern portion of Virginia in 

the OTR by statute, in CAA section 184. 

We also do not think the legislative 

history supports commenter’s 

interpretation. Nothing in the House 

Report accompanying the Amendments 

suggests Congress intended OTR 

requirements to be imposed outside of 

the OTR (e.g., application of VOC CTG 

RACT in the entire state of Virginia, as 

opposed to the portion of the state 

within the OTR). That would have been 

a drastic departure from the overall 

structure of CAA sections 176A and 184 

about which we do not think Congress 

would have been silent. There are also 

two amendments Congress considered 

that may shed light on whether 

Congress was contemplating a state’s 

inclusion in the OTR as being the 

operative condition (commenter’s 

interpretation) or whether the actual 

inclusion of an area in the OTR was the 

operative condition for imposing OTR 

requirements (the EPA’s interpretation). 

During the development of the 1990 

Amendments, Congress considered 

creating a special permit program for 

small sources. In delineating the small 

sources that would need such a 

program, Congress identified those 

‘‘located within a nonattainment area, 

ozone transport area, or subject to a 

standard under section 112 consistent 

with the other provisions of this title.’’ 

H.R. Rep. 101–490 (May 17, 1990) (see 

Sec. 407) (emphasis added). Similarly, 

in drafting a version of the NOX waiver 

provision that was ultimately adopted 

in CAA section 182(f), Congress 

contemplated two types of 

determinations under which major 

stationary source plan provisions would 

not apply for major stationary sources of 

NOX—one type of determination for 

non-OTR areas and a different type of 

determination for OTR areas. While 

these provisions were not ultimately 

adopted in the 1990 Amendments, they 

shed light on what the legislative 

drafters considered to be the operative 

trigger for the application of 

requirements: In neither of these 

provisions does the drafted language 

suggest that a source’s location within a 

state that was in the OTR to be the 

trigger; instead, both drafts suggest an 

intent that being in the OTR was the 

condition upon which the difference in 

the waiver requirements would hinge. 

Finally, commenter does not offer any 

coherent policy rationale for its 

interpretation of CAA section 

184(a)(1)(B). As explained previously, 

under this interpretation, RACT for 

sources of VOCs covered by a CTG 

would apply statewide for any state if 

any portion of that state is in the OTR. 

But under the last sentence of CAA 

section 184(b), RACT for major 

stationary sources of NOX only applies 

in the areas of a state within the OTR. 

The EPA has previously explained that 

‘‘authoritative assessments of ozone 

control approaches have concluded that 

VOC reductions are generally most 

effective for addressing ozone locally, 

including in dense urbanized areas and 

‘immediately downwind.’ ’’ 82 FR 

51238, 51248 (November 3, 2017) (citing 

82 FR 6517; 76 FR 48222; and 63 FR 

57381). Further, 

The EPA continues to believe that NOX

emission reductions strategies are more 

effective than VOC reductions in lowering 

ozone concentrations over longer distances. 

The EPA believes that regional ozone 

formation is primarily due to NOX, but VOCs 

are also important because VOCs influence 

how efficiently ozone is produced by NOX, 

particularly in dense urban areas. Reductions 

in anthropogenic VOC emissions will 

typically have less of an impact on the longrange transport of ozone, although these 

emissions reductions can be effective in 

reducing ozone in nearby urban areas where 

ozone production may be limited by the 

availability of VOCs. Therefore, a 

combination of localized VOC reductions in 

urban areas with additional NOX reductions 

across a larger region will help to reduce 

ozone and precursors in nonattainment areas, 

as well as downwind transport across the 

eastern U.S. 82 FR 51238. 

Commenter’s interpretation thus runs 

contrary to the EPA’s longstanding 

understanding of how to most 

effectively reduce ozone levels: If any 

ozone precursor should be reduced on 

a broader geographic scale, it should 

arguably be NOX, not VOCs. But 

commenter’s rendering of the statute 

would produce the opposite result, 

imposing VOC-reduction requirements 

on a broad geographic scale beyond the 

borders of the OTR, while NOX RACT is 

limited to the OTR itself. 

We also do not agree with the 

commenter’s assertion that granting 

Maine’s petition would not be 

‘‘consistent’’ with CAA section 184 

because the EPA did not promulgate 

criteria precisely according to CAA 

section 184(d). We do not think this is 

a reasonable way to read the 

intersection of the statutory provisions 

at issue, particularly because, contrary 

to commenter’s assertion, the EPA has 

substantively satisfied Congress’ aims in 

CAA section 184(d), both in general, 

and with respect to its analysis of 

Maine’s request. CAA section 184(d) 

required the EPA, not later than 6 

months after November 15, 1990, to 

‘‘promulgate criteria for purposes of 

determining the contribution of sources 

in one area to concentrations of ozone 

in another area which is a 

nonattainment area for ozone. Such 

criteria will require that the best 

available air quality monitoring and 

modeling techniques be used for 

purposes of making such 

determinations.’’ 

The EPA may not have issued a rule 

expressly addressing CAA section 

184(d) by June 1991, but it is simply not 

the case that the Agency has not issued 

and continually updated criteria for the 

purposes of determining how upwind 

contributions affect downwind ozone 

air quality. The EPA has issued multiple 

rules related to the interstate transport 

of ozone under CAA section 

110(a)(2)(D)(i)(I), and for each of these 

rules, the Agency has put forth its 

criteria for determining linkages and 

contributions between upwind areas 

and downwind air quality problems 

(both for areas in nonattainment, per 

CAA section 184(d), but also for areas 

that may be meeting the NAAQS but 

could face problems maintaining the 

standards). In each of these transport 

rules, the Agency has used qualityassured, certified air quality monitoring 

data and state-of-the-science air quality 

modeling.24


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documents/air_quality_modeling_tsd_final_

revised_csapr_update.pdf. 

The commenter acknowledges the 

body of work the EPA has developed 

with respect to assessing interstate 

contributions using air quality modeling 

in these transport rules, but erroneously 

claims that those techniques and 

expertise were not used in the proposed 

action. Agreeing that the Ozone Source 

Apportionment Technology (OSAT)/ 

Anthropogenic Precursor Culpability 

Assessment (APCA) technique in the 

CAMx air quality model is an 

‘‘available’’ tool and noting that the EPA 

has previously identified this technique 

to be an appropriate tool for quantifying 

interstate air quality contributions, the 

commenter states, ‘‘The [proposed] 

determination does not use OSAT/ 

APCA. Instead, it relies on weaker 

analyses: HYSPLIT back-trajectories and 

emissions trends.’’ This is simply 

incorrect. In its proposal analyzing 

Maine’s request, the EPA used the same 

source apportionment modeling 

techniques employed by all of the 

transport rules. The EPA additionally 

looked at back trajectories under 

HYSPLIT and analyzed relevant 

emissions inventory data. We also do 

not agree with the commenter’s 

contention that the EPA’s proposal 

cannot move forward because it relied 

on ‘‘stale’’ monitoring data, which it 

claims cannot be the ‘‘best available.’’ 

We note that CAA section 184(d) 

requires the use of ‘‘the best available 

air quality monitoring and modeling 

techniques’’ (emphasis added). We do 

not read this provision to prohibit the 

Agency from moving forward with an 

action if newer data became available or 

certified shortly before issuance of that 

action; and in any case, the Agency 

considered up-to-date monitoring data 

in the context of its proposal and for 

this final action. 

IV. Comments Regarding Exempting an 

Area of the OTR From OTR 

Requirements for Future Ozone 

Standards 

Comment: One commenter asserts 

that the EPA cannot exempt an OTR 

area from OTR requirements for future 

ozone standards. The commenter states 

that under the plain text of CAA section 

176A(a), the establishment of a transport 

region as well as the addition and 

removal of a state or portion of a state 

from that region is based on a 

demonstration with respect to a 

particular standard (emphasizing the 

statute’s use of the term ‘‘the standard’’). 

The commenter further argues that even 

if the statute is ambiguous, that it is 

arbitrary and capricious to remove a 

state from the OTR with respect to a 

future standard when the EPA does not 

know when that standard will be 

promulgated, what its level will be, and 

whether the subject area will exceed the 

contribution threshold for that standard. 

The commenter states that because the 

EPA’s assessment of nonattainment and 

maintenance issues is tied to particular 

ozone standards, the EPA may not 

exempt areas from future ozone 

standards. 

Response: The EPA does not agree 

with the commenter that CAA section 

176A(a)(1) and (2)’s reference to ‘‘the 

standard’’ requires a reading of the Act 

such that the EPA’s addition or removal 

of a state or portion of a state from the 

OTR must be specific only to one ozone 

standard. Such a reading is contrary to 

the larger statutory context and design, 

and is not compelled by the language of 

the Act. The EPA has interpreted the 

establishment of ozone transport 

regions, including the Congressionally 

created OTR in CAA section 184(a), to 

endure across updates to the NAAQS. 

We have never interpreted the Act to 

require a new reconstitution of an OTR 

specific to each NAAQS. Implementing 

the Act in the way that commenter 

suggests is required would mean that 

states would be added or removed, but 

only as to specific standards, and so a 

region could be a patchwork of states 

subject to different requirements 

depending on whether they were added 

or removed as to certain NAAQS for that 

CAA. 

The commenter ignores the other 

references to the NAAQS present in 

CAA section 176A and section 184, 

which as the commenter notes, crossreferences section 176A and governs the 

substantive requirements that apply to 

OTR states and other states designated 

in an ozone transport region. In CAA 

section 176A(a), the statute provides 

that ‘‘whenever . . . the Administrator 

has reason to believe’’ that interstate 

transport of pollutants contributes 

significantly to a violation of ‘‘a national 

ambient air quality standard,’’ the 

Administrator may establish a transport 

region for ‘‘such pollutant’’ that 

includes the involved states (emphasis 

added). The language governing the 

timing of an establishment of an OTR is 

therefore not tied to the promulgation of 

a NAAQS (unlike, for example, states’ 

obligations to update their SIPs to 

address CAA section 110(a)(2)(D)(i)(I) 

interstate transport obligations within 3 

years of the promulgation of a standard). 

Further, the basis for creating a 

transport region is the Administrator’s 

belief that there is significant 

contribution to a violation of ‘‘a’’ 

NAAQS, not one particular NAAQS. 

That section also makes clear that the 

establishment of the transport region is 

for ‘‘such pollutant,’’ not such standard. 

The statutory language and structure 

comports with the EPA’s longstanding 

interpretation of a transport region being 

established and existing across updates 

to a standard. Section 184 similarly 

references the establishment of transport 

regions ‘‘for ozone’’ (see, e.g., CAA 

section 184(a), section 184(b)(1), section 

184(c)(1)). 

We do not agree that it is arbitrary and 

capricious to remove a state or portion 

of a state from general transport region 

obligations when they have met the 

required showing under CAA section 

176A(a)(2) based on the NAAQS in 

effect at the time of the action. If, under 

a future ozone standard the EPA finds 

that there is significant contribution 

from Maine or other states to a violation 

of that standard, CAA section 176A(a)(1) 

clearly provides authority for the EPA to 

add such state or portion of a state to a 

transport region. Further, commenter’s 

argument on this point would reduce 

CAA section 176A(a)(2) to a nullity. 

Effectively, no state or portion of a state 

could ever be removed from a transport 

region because there is always the 

hypothetical chance that the Agency 

will promulgate some more stringent 

NAAQS in the future and would be 

unable to evaluate transport without 

knowing what that standard is. The 

Congress that enacted CAA section 

176A(a)(2) could not have intended this 

result. 

V. Comments Regarding Environmental 

Justice 

Comment: Two commenters contend 

that the EPA failed to consider 

environmental justice. One commenter 

contends that the EPA failed to consider 

Executive Order 12898 and notes that 

the EPA’s EJSCREEN tool shows that 

there are potentially impacted 

environmental justice communities in 

Maine and other nearby states. The 

commenter contends that the counties 

where the EPA proposes to allow more 

emissions are also home to low-income 

households, and, in some instances, also 

tribal communities. The commenter 

points out that the areas the EPA 

proposes to remove from the OTR 

include populations that are sensitive to 

ozone pollution (the elderly, children 

and adults active outdoors, and people 

with asthma and other respiratory 

diseases). In particular, the commenter 

notes that Maine has a higher incidence 

of asthma among adults (11.2 percent) 

compared to the national average (7.7 

percent), and that certain counties such 

as Androscoggin County, most of which 

is to be removed from the OTR, has an 


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25U.S. EPA Environmental Justice Screening and 

Mapping Tool (EJSCREEN), which utilizes U.S. 

Census Bureau American Community Survey (ACS) 

data from 2014–2018. The American Community 

Survey information and data is available at https:// 

www.census.gov/programs-surveys/acs. The 

EJSCREEN tool is available at https://

ejscreen.epa.gov/mapper/. 

26 ‘‘Current Asthma Demographics’’ Current 

Adult Asthma by State. American Lung Association. 

Data from Centers for Disease Control and 

Prevention, Behavioral Risk Factor Surveillance 

System 2011–2018. Analysis by the American Lung 

Association Epidemiology and Statistics Unit. 

https://www.lung.org/research/trends-in-lungdisease/asthma-trends-brief/current-demographics. 

27 ‘‘Common Asthma Triggers’’ Centers for 

Disease Control and Prevention. https://

www.cdc.gov/asthma/triggers.html. 

28 ‘‘Most Recent Asthma State or Territory Data’’ 

State or Territory Adult Current Asthma Prevalence 

by State or Territory (2019). Centers for Disease 

Control and Prevention. https://www.cdc.gov/ 

asthma/most_recent_data_states.htm. 

29See Table 2 for current design values and the 

ozone design value spreadsheet located in the 

docket for this action for historical design values. 

30For asthma data, see information provided in 

the Maine Environmental Public Health Tracking 

Program using data provided by the Maine 

Behavioral Risk Factor Surveillance System and 

analyzed by the Chronic Disease & Maternal & Child 

Health Epidemiology Team. Available at https://

data.mainepublichealth.gov/tracking/data-topics/ 

asthma-content. 

31 ‘‘Asthma in Maine’’ Maine Center for Disease 

Control and Prevention Division of Disease 

Prevention. Maine Department of Health and 

Human Services. https://www.maine.gov/dhhs/ 

mecdc/population-health/mat/asthma-information/ 

asthma-in-maine.shtml. 

even higher incidence (14 percent of all 

county residents between 2011–2014). 

Another commenter suggests that the 

EPA’s action may contravene the CAA’s 

purpose, set out in CAA section 

101(b)(1), to assure that air quality is 

protected and enhanced while 

supporting the productive capacity of 

all regions in the country. 

Response: Under Executive Order 

(E.O.) 12898, the EPA is directed, to the 

greatest extent practicable and 

permitted by law, to make 

environmental justice (EJ) part of its 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of its programs, 

policies, and activities on minority 

populations and low-income 

populations. Consistent with E.O. 12898 

and the Presidential Memorandum that 

accompanies it, the EPA’s EJ policies 

promote justice by focusing attention 

and efforts on addressing the types of EJ 

harms and risks that are prevalent 

among minority, low-income, and 

indigenous populations. E.O. 12898 and 

the EPA’s EJ policies do not mandate 

particular outcomes from an action, but 

they require that decisions involving the 

action be informed by a consideration of 

EJ issues. With respect to this petition, 

the EPA determined that removing the 

requested areas from the OTR will not 

significantly contribute to 

nonattainment or interfere with 

maintenance of any ozone NAAQS in 

any area of the OTR, including areas 

where there are minority and lowincome populations. 

The EPA acknowledges that the area 

to be removed from the OTR includes 

areas with minority populations and 

low-income populations. Of the 

approximately 737,000 people who live 

in the area to be removed from the OTR, 

approximately 5.7 percent identify as 

people of color, and approximately 35 

percent are identified as low income.25

Maine has four federally recognized 

tribes: The Passamaquoddy, Penobscot, 

Maliseet and Micmac tribes. All four 

tribes include populations that live in 

the area to be removed from the OTR. 

Additionally, there are populations in 

the area to be removed from the OTR 

that could be sensitive to ozone, 

including children and those with preexisting health conditions like asthma 

and chronic obstructive pulmonary 

disease (COPD). Maine has one of the 

highest rates of adult asthma in the 

United States.26 Asthma is a chronic 

lung disease with symptoms including 

wheezing, coughing, chest tightness, 

and shortness of breath. A wide range of 

indoor and outdoor allergens and 

irritants can trigger or exacerbate 

asthma, including tobacco smoke, 

pollen, pet dander, mites, mold, and air 

pollution from stationary and mobile 

sources.27 Pollutants including ozone, 

nitrogen dioxide, sulphur dioxide, and 

PM2.5 have been shown to trigger or 

exacerbate asthma symptoms. 

In 2019, the adult asthma rate in 

Maine was 11.8 percent, as compared to 

8.0 percent for the United States.28

While higher than the adult asthma rate 

in the United States, the adult asthma 

rate in Maine does not necessarily 

correlate with high ozone levels. For 

example, of the ozone monitoring sites 

in Maine located in areas that will be 

removed from the OTR, the monitor 

with the highest 2020 ozone design 

value of 57 ppb (and historically having 

higher design values) is located in 

Washington County, a county with one 

of the lowest rates of adult asthma in 

Maine.29 30 Further, other factors, such 

as the state’s dense forests, high pollen 

levels, and heavy reliance on wood 

burning stoves for home heating, 

contribute to the high rate of asthma in 

Maine.31

The EPA has identified minority, lowincome, and other at-risk populations 

that could be impacted by this action 

and considered whether removal of the 

requested part of Maine from the OTR 

could have disproportionately high and 

adverse human health or environmental 

effects on those populations. As 

explained above in the response to 

comments about a potential increase in 

ozone precursor emissions, the EPA 

believes that a substantial increase in 

ozone precursor emissions resulting 

from this action is highly unlikely in 

any area of Maine or the OTR. Thus, the 

EPA does not expect the action to result 

in disproportionally high and adverse 

human health or environmental effects 

on any population in Maine or the OTR, 

including minority, low-income, and atrisk populations. 

IV. Final Action To Grant Maine’s CAA 

Section 176A Petition 

Based on the considerations outlined 

at proposal, consideration of all public 

comments, and for the reasons 

described in this notice, the EPA finds 

that the portion of the state requested to 

be removed from the OTR does not 

contribute to a violation of any ozone 

standard in any area of the OTR, and 

that further control of emissions from 

that portion of Maine will not 

significantly contribute to the 

attainment of any ozone standard in any 

area of the OTR. Thus, the EPA is 

granting Maine’s CAA section 176A 

petition to remove a portion of the state 

from the OTR. 

V. Judicial Review and Determinations 

Under Sections 307(b)(1) and 307(d) of 

the CAA 

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 within 60 days of publication of 

any final action. Filing a petition for 

reconsideration by the Administrator of 

this rule will not affect the finality of 

the rule for the purposes of judicial 

review nor will 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. The Administrator of the EPA, 

hereby, determines that this action is 

subject to CAA section 307(d), as 

authorized by CAA section 307(d)(1)(V). 

VI. Statutory Authority 

42 U.S.C. 7401 et seq. 

List of Subjects in 40 CFR Part 81 

Environmental protection, Air 

pollution control, Carbon oxides, 

Greenhouse gases, Intergovernmental 

relations, Lead, National parks, Nitrogen 

oxides, Ozone, Reporting and 

recordkeeping requirements, Sulfur 


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oxides, Volatile organic compounds, 

Wilderness areas. 

Michael Regan, 

Administrator. 

For the reasons stated in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is amended as 

follows: 

PART 81—DESIGNATIONS OF AREAS 

FOR AIR QUALITY PLANNING 

PURPOSES 

■ 1. The authority citation for part 81 

continues to read as follows: 

Authority: 42 U.S.C. 7401, et. seq. 

■ 2. Subpart E, consisting of §§ 81.455 

and 81.457, is added to read as follows: 

Subpart E—Identification of Interstate 

Transport Regions 

§ 81.455 Scope. 

This subpart identifies interstate 

transport regions established for 

national ambient air quality standards 

pursuant to section 184 or section 176A 

of the Clean Air Act. 

§ 81.457 Ozone Transport Region. 

Except as provided in paragraph (a), 

the Ozone Transport Region is 

comprised of the areas identified by 

Congress under 42 U.S.C. 7511c(a). 

(a) Ozone Transport Region boundary. 

As of March 14, 2022, the boundary for 

the Ozone Transport Region consists of 

the entire States of Connecticut, 

Delaware, Maryland, Massachusetts, 

New Hampshire, New Jersey, New York, 

Pennsylvania, Rhode Island, and 

Vermont; portions of Maine identified 

in this section under Table 1; and the 

Consolidated Metropolitan Statistical 

Area that includes the District of 

Columbia and the following counties 

and cities in Virginia: Arlington County, 

Fairfax County, Loudoun County, Prince 

William County, Strafford County, 

Alexandria City, Fairfax City, Falls 

Church City, Manassas City, and 

Manassas Park City. 

TABLE 1 TO PARAGRAPH (a)—MAINE TOWNS AND CITIES IN THE OZONE TRANSPORT REGION

Maine towns and cities in the ozone transport region 

Androscoggin County (only the following town): Durham. 

Cumberland County (only the following towns and cities): Brunswick, Cape Elizabeth, Casco, Cumberland, Falmouth, Freeport, Frye Island, 

Gorham, Gray, Harpswell, Long Island, New Gloucester, North Yarmouth, Portland, Pownal, Raymond, Scarborough, South Portland, Standish, Westbrook, Windham, and Yarmouth. 

Hancock County (only the following towns and cities): Bar Harbor, Blue Hill, Brooklin, Brooksville, Cranberry Isles, Deer Isle, Frenchboro, 

Gouldsboro, Hancock, Lamoine, Mount Desert, Sedwick, Sorrento, Southwest Harbor, Stonington, Sullivan, Surry, Swans Island, Tremont, 

Trenton, and Winter Harbor. 

Knox County (only the following towns and cities): Camden, Criehaven, Cushing, Friendship, Isle au Haut, Matinicus Isle, Muscle Ridge Shoals, 

North Haven, Owls Head, Rockland, Rockport, St. George, South Thomaston, Thomaston, Vinalhaven, and Warren. 

Lincoln County (only the following towns and cities): Alna, Boothbay, Boothbay Harbor, Breman, Bristol, Damariscotta, Dresden, Edgecomb, 

Monhegan, Newcastle, Nobleboro, South Bristol, Southport, Waldoboro, Westport, and Wiscasset. 

Sagadahoc County (all towns and cities). 

Waldo County (only the following town): Islesboro. 

York County (only the following towns and cities): Alfred, Arundel, Berwick, Biddeford, Buxton, Dayton, Eliot, Hollis, Kennebunk, Kennebunkport, 

Kittery, Limington, Lyman, North Berwick, Ogunquit, Old Orchard Beach, Saco, Sanford, South Berwick, Wells, and York. 

(b) Applicability. As of March 14, 

2022, the provisions of 42 U.S.C. 7511c 

will no longer be applicable in the 

following areas of Maine: The State of 

Maine, with the exception of the towns 

and cities listed in this section under 

table 1 to paragraph (a). 

[FR Doc. 2022–02653 Filed 2–9–22; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Parts 403, 405, 410, 411, 414, 

415, 423, 424, and 425 

[CMS–1751–F2] 

RIN–0938–AU42 

Medicare Program; CY 2022 Payment 

Policies Under the Physician Fee 

Schedule and Other Changes to Part B 

Payment Policies; Medicare Shared 

Savings Program Requirements; 

Provider Enrollment Regulation 

Updates; Provider and Supplier 

Prepayment and Post-Payment Medical 

Review Requirements; Corrections 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), Department 

of Health and Human Services (HHS). 

ACTION: Final rule; correction and 

correcting amendment. 

SUMMARY: In the November 19, 2021 

issue of the Federal Register, we 

published a final rule entitled 

‘‘Medicare Program; CY 2022 Payment 

Policies Under the Physician Fee 

Schedule and Other Changes to Part B 

Payment Policies; Medicare Shared 

Savings Program Requirements; 

Provider Enrollment Regulation 

Updates; and Provider and Supplier 

Prepayment and Post-Payment Medical 

Review Requirements’’ (referred to 

hereafter as the ‘‘CY 2022 PFS final 

rule’’). The effective date was January 1, 

2022. This document corrects a limited 

number of technical and typographical 

errors identified in the November 19, 

2021 final rule. 

DATES: This document is effective 

February 10, 2022, and is applicable 

beginning January 1, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Terri Plumb, (410) 786–4481, Gaysha 

Brooks, (410) 786–9649, or Annette 

Brewer (410) 786 6580. 

SUPPLEMENTARY INFORMATION:

I. Background 

In FR Doc. 2021–23972 of November 

19, 2021, the CY 2022 PFS final rule (86 

FR 64996), there were technical errors 

that are identified and corrected in this 


jspears on DSK121TN23PROD with RULES1