[Federal Register Volume 70, Number 163 (Wednesday, August 24, 2005)]
[Proposed Rules]
[Pages 49526-49530]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16814]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R01-OAR-2005-ME-0007; A-1-FRL-7959-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Maine; Nitrogen Oxides Exemption Request for Northern Maine

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to approve an exemption request from the 
requirements contained in Section 182(f) of the Clean Air Act (CAA or 
Act) for Northern Maine (specifically, Oxford, Franklin, Somerset, 
Piscataquis, Penobscot, Washington, Aroostook, and portions of Hancock 
and Waldo Counties). This area, along with the rest of the State of 
Maine, are part of the Ozone Transport Region (OTR) as provided for in 
section 184(a) of the Act. Section 182(f) in combination with section 
184 (relating to ozone transport regions) of the Act requires States in 
the OTR, such as Maine, to adopt reasonably available control 
technology (RACT) rules for major stationary sources of nitrogen oxides 
(NO<INF>X</INF>) and to provide for nonattainment area new source 
review (NSR) for new sources and modifications that are major for 
NO<INF>X</INF>. This exemption request, submitted by the State of Maine 
on March 24, 2005 with supplemental submittals dated April 19, 2005 and 
June 28, 2005, is based on a demonstration that NO<INF>X</INF> 
emissions in the exemption area are not impacting Maine's nonattainment 
areas or other nonattainment areas in the OTR during times when 
elevated ozone levels are monitored in those areas. As such, additional 
reductions in NO<INF>X</INF> emissions from this area beyond what the 
State regulations already provide for are not necessary for future 
attainment in any of Maine's ozone nonattainment areas or other ozone 
nonattainment areas in the OTR. Thus, as provided for in section 
182(f)(2), additional NO<INF>X</INF> reductions in these areas would 
constitute excess reductions that can be waived under the Act. This 
action is being taken under the CAA.

[[Page 49527]]


DATES: Written comments must be received on or before September 23, 
2005.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID Number R01-OAR-2005-ME-0007 by one of the following 
methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    2. Agency Web site: http://docket.epa.gov/rmepub/ Regional Material 
in EDocket (RME), EPA's electronic public docket and comment system, is 
EPA's preferred method for receiving comments. Once in the system, 
select ``quick search,'' then key in the appropriate RME Docket 
identification number. Follow the on-line instructions for submitting 
comments.
    3. E-mail: <a href="/cdn-cgi/l/email-protection#791a16170b1600571d180f1c391c0918571e160f"><span class="__cf_email__" data-cfemail="11727e7f637e683f75706774517461703f767e67">[email protected]</span></a>.
    4. Fax: (617) 918-01661.
    5. Mail: ``RME ID Number R01-OAR-2004-ME-0007'', David Conroy, U.S. 
Environmental Protection Agency, EPA New England Regional Office, One 
Congress Street, Suite 1100 (mail code CAQ), Boston, MA 02114-2023.
    6. Hand Delivery or Courier. Deliver your comments to: David 
Conroy, Chief, Air Programs Branch, Office of Ecosystem Protection, 
U.S. Environmental Protection Agency, EPA New England Regional Office, 
One Congress Street, 11th floor, (CAQ), Boston, MA 02114-2023. Such 
deliveries are only accepted during the Regional Office's normal hours 
of operation. The Regional Office's official hours of business are 
Monday through Friday, 8:30 to 4:30 excluding Federal holidays.
    Instructions: Direct your comments to Regional Material in EDocket 
(RME) ID Number R01-OAR-2004-ME-0007. EPA's policy is that all comments 
received will be included in the public docket without change and may 
be made available online at http://docket.epa.gov/rmepub/, including 
any personal information provided, unless the comment includes 
information claimed to be Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. Do not 
submit through Regional Material in EDocket (RME), regulations.gov, or 
e-mail, information that you consider to be CBI or otherwise protected. 
The EPA RME Web site and the Federal regulations.gov Web site are 
``anonymous access'' systems, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through RME or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
Regional Material in EDocket (RME) index at http://docket.epa.gov/rmepub/. Although listed in the index, some information is not publicly 
available, i.e., CBI or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically in RME or in hard copy at Office of 
Ecosystem Protection, U.S. Environmental Protection Agency, EPA New 
England Regional Office, One Congress Street, Suite 1100, Boston, MA. 
EPA requests that if at all possible, you contact the contact listed in 
the FOR FURTHER INFORMATION CONTACT section to schedule your 
inspection. The Regional Office's official hours of business are Monday 
through Friday, 8:30 to 4:30 excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Richard P. Burkhart, Air Quality 
Planning, Office of Ecosystem Protection, U.S. Environmental Protection 
Agency, EPA New England Regional Office, One Congress Street, 11th 
floor, (CAQ), Boston, MA 02114-2023. Phone: 617-918-1664, Fax: (617) 
918-0664, E-mail: <a href="/cdn-cgi/l/email-protection#375542455c5f56454319455e545f5645537752475619505841"><span class="__cf_email__" data-cfemail="0b697e7960636a797f25796268636a796f4b6e7b6a256c647d">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. General Information

A. How Can I Get Copies of This Document and Other Related Information?

    In addition to the publicly available docket materials available 
for inspection electronically in Regional Material in EDocket, and the 
hard copy available at the Regional Office, which are identified in the 
ADDRESSES section above, copies of the state submittal and EPA's 
technical support document are also available for public inspection 
during normal business hours, by appointment at The Bureau of Air 
Quality Control, Department of Environmental Protection, First Floor of 
the Tyson Building, Augusta Mental Health Institute Complex, Augusta, 
ME 04333-0017.

B. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate 
regional file/rulemaking identification number in the subject line on 
the first page of your response. It would also be helpful if you 
provided the name, date, and Federal Register citation related to your 
comments.

II. Rulemaking Information

    The following outline is provided to aid in locating information in 
this document.

A. Background and Purpose.
B. Clean Air Act Requirements
C. Scope of Exemptions
    1. Inspection and Maintenance (I/M) Program
    2. Conformity
D. Criteria for Evaluation of Section 182(f) Exemption Requests
E. Summary of State Request
F. Technical Justification for the Request

A. Background and Purpose

    On March 24, 2005, Maine Department of Environmental Protection 
(DEP) submitted an exemption request from the requirements for 
NO<INF>X</INF> control contained in Section 182(f) of the Clean Air Act 
(CAA or Act) for the Northern Maine area (specifically, Oxford, 
Franklin, Somerset, Piscataquis, Penobscot, Washington, Aroostook, and 
portions of Hancock and Waldo Counties). On April 19, 2005 and June 28, 
2005, Maine DEP submitted additional analyses to EPA justifying its

[[Page 49528]]

waiver request, which EPA is using as a basis for this proposal. All 
submittals are available in the docket.
    The area for which Maine is requesting a waiver, along with the 
rest of the State of Maine, are part of the Ozone Transport Region as 
provided for in section 184(a) of the Act. In addition, the waiver area 
is designated unclassifiable/attainment for the 8-hour ozone standard. 
Section 182(f) in combination with section 184 (relating to ozone 
transport regions) of the Act requires States in the OTR, such as 
Maine, to adopt reasonably available control technology (RACT) rules 
for major stationary sources of nitrogen oxides and to provide for 
nonattainment area new source review for new sources and modifications 
that are major for NO<INF>X</INF>. This exemption request, is based on 
a demonstration that NO<INF>X</INF> emissions in this area are not 
impacting Maine's ozone nonattainment areas or any other ozone 
nonattainment area in the OTR during times when elevated ozone levels 
are monitored in those areas. As such, additional reductions in 
NO<INF>X</INF> emissions from this area beyond what the State 
regulations already provide for are not necessary for future attainment 
in any of Maine's ozone nonattainment areas or other ozone 
nonattainment area in the OTR. Thus, as provided for in section 
182(f)(2), additional NO<INF>X</INF> reductions in these areas would 
constitute excess reductions that can be waived under the Act. A 
Technical Support Document (TSD) has been prepared for this action. The 
TSD is available in the docket.

B. Clean Air Act Requirements

    The air quality planning requirements for the reduction of 
NO<INF>X</INF> emissions are set out in section 182(f) of the Act. 
Section 182(f) of the Act requires states with areas designated and 
classified as moderate nonattainment and above for ozone, or in ozone 
transport regions, to impose the same control requirements for major 
stationary sources of NO<INF>X</INF> as apply to major stationary 
sources of volatile organic compounds (VOC). These requirements include 
the adoption of RACT rules for major stationary sources and 
nonattainment area NSR for major new sources and major modifications. 
Section 182(f) provides further that these requirements do not apply 
for nonattainment areas inside an ozone transport region if EPA 
determines that reductions of NO<INF>X</INF> from such areas would not 
contribute to net ozone benefits in the OTR. In addition, 
implementation of NO<INF>X</INF> controls may be limited if EPA 
determines it is necessary to avoid achieving excess reductions. Also, 
NO<INF>X</INF>-related general conformity provisions do not apply in an 
area that is granted a section 182(f) exemption. The area for which 
Maine is requesting a NO<INF>X</INF> waiver is designated 
unclassifiable/attainment for the 8-hour ozone standard and does not 
have any 8-hour ozone conformity requirements.
    The area for which Maine DEP has requested a waiver includes the 
following counties: Oxford, Franklin, Somerset, Piscataquis, Penobscot, 
Washington, and Aroostook. Also included in the area requested for a 
waiver are the portions of Waldo and Hancock Counties that are 
designated unclassifiable/attainment for the 8-hour ozone standard. In 
Waldo County, this includes the following towns: Belfast, Belmont, 
Brooks, Burnham, Frankfort, Freedom, Jackson, Knox, Liberty, 
Lincolnville, Monroe, Montville, Morrill, Northport, Palermo, Prospect, 
Searsmont, Searsport, Stockton Springs, Swanville, Thorndike, Troy, 
Unity, Waldo, and Winterport. In Hancock County, this includes the 
following towns and townships: Amherst, Aurora, Bucksport, Castine, 
Dedham, Eastbrook, Ellsworth, Franklin, Great Pond, Mariaville, Orland, 
Osborn, Otis, Penobscot, Verona, Waltham, Oqiton Township (T4 ND), T3 
ND, T39 MD, T40 MD, T41 MD, T32 MD, T34 MD, T35 MD, T28 MD, T22 MD, T16 
MD, T8 SD, T9 SD, T10 SD, and T7 SD.
    As stated above, each of the counties or partial counties for which 
Maine DEP is seeking an exemption is within the OTR. For attainment 
areas within the OTR, the application of NO<INF>X</INF> requirements 
under the CAA may be limited if it is shown that additional 
NO<INF>X</INF> reductions are excess to the attainment needs throughout 
the region. EPA believes, in the case of these areas in Maine at the 
northern extremity of the OTR, that NO<INF>X</INF> requirements can be 
waived because the Maine DEP has submitted an acceptable demonstration 
that additional reductions beyond what the state regulations already 
provide for are not necessary for the nonattainment areas in the state 
to attain, because emissions from this area are not contributing to the 
ozone nonattainment problem in any other nonattainment area in the OTR, 
and because reductions in this area are not necessary for purposes of 
showing future attainment anywhere in the OTR. Maine DEP has made this 
showing through air modeling trajectory analyses, NO<INF>X</INF> 
emission analysis, and meteorological analyses. Most of this same 
geographic area in Maine received approval by EPA of a similar 
NO<INF>X</INF> waiver request under the 1-hour ozone standard on 
December 26, 1995 (60 FR 66748). At this time, the 1-hour 
NO<INF>X</INF> waiver remains as approved in 1995. The implementation 
policy for the 8-hour ozone standard (69 FR 23951) requires areas to 
request a separate waiver under the 8-hour ozone standard. This is the 
only area in the OTR that received a NO<INF>X</INF> waiver under the 1-
hour ozone standard, and is the first area in the OTR to request a 
NO<INF>X</INF> waiver under the 8-hour ozone standard.

C. Scope of Exemptions

    If the EPA Administrator determines, under section 182(f) of the 
Act, that additional reductions of NO<INF>X</INF> are excess, the area 
at issue shall automatically (i.e., a State would not need to submit an 
exemption request for each requirement) be exempt from the following 
requirements (as applicable): Inspection and Maintenance program 
NO<INF>X</INF> requirements, the NO<INF>X</INF>-related general 
conformity provisions, the NO<INF>X</INF>-related transportation 
conformity provisions in 40 CFR part 93, NO<INF>X</INF> RACT, and 
nonattainment area NSR for new sources and modifications that are major 
for NO<INF>X</INF>.
1. Inspection and Maintenance (I/M) Program
    I/M is not required in any portion of Northern Maine, therefore, 
EPA's action on this request has no impact on I/M requirements.
2. Conformity
    The transportation conformity rule requires emissions analysis of 
motor vehicle NO<INF>X</INF> emissions for ozone nonattainment and 
maintenance areas in order to determine the conformity of 
transportation plans and programs to state implementation plan 
requirements. The waiver area is currently designated unclassifiable/
attainment for the 8-hour standard, and does not need to do 
transportation conformity. General conformity is also not required in 
this area. Because conformity is not required in this area, EPA's 
action on this request has no impact on any conformity requirements.

D. Criteria for Evaluation of Section 182(f) Exemption Requests

    The criteria established for the evaluation of an exemption request 
from the section 182(f) requirements are set forth in a memorandum from 
Stephen D. Page, Director, OAQPS, dated January 14, 2005, and titled: 
``Guidance On Limiting Nitrogen Oxides Requirements Related To 8-Hour 
Ozone Implementation.''

E. Summary of State Request

    On March 24, 2005, the Maine DEP submitted an exemption request 
from

[[Page 49529]]

the requirements contained in section 182(f) of the CAA for Northern 
Maine. In all, EPA received three submittals from Maine. The initial 
request dated March 24, 2005, and a first supplement dated April 19, 
2005, and a second supplement dated June 28, 2005.
    This exemption request is based on a demonstration that 
NO<INF>X</INF> emissions in this multi-county area are not impacting 
Maine's two 8-hour ozone nonattainment areas or other 8-hour ozone 
nonattainment areas in the OTR during times when elevated 8-hour ozone 
levels are monitored in those areas. As such, additional reductions in 
NO<INF>X</INF> emissions from these counties (i.e., NO<INF>X</INF> 
reductions beyond what the state regulations provide for) are not 
necessary for the two nonattainment areas in the State to attain and 
are also not necessary for 8-hour ozone attainment purposes anywhere in 
the OTR. Under these circumstances, as section 182(f)(2) provides, such 
additional reductions may be waived as excess reductions.

F. Technical Justification for the Request

    Maine submitted a detailed technical analysis showing that 
NO<INF>X</INF> emissions from the proposed NO<INF>X</INF> waiver area 
do not impact either of the two 8-hour nonattainment areas in Maine or 
any other 8-hour ozone nonattainment in the OTR. The request relies on 
several different techniques to prove Maine's case, with the primary 
technique being back trajectories using the HYSPLIT trajectory model.
    Maine DEP created back trajectories for each day that experienced 
an 8-hour ozone exceedance in either of Maine's nonattainment areas 
during 1998 through 2004 time period. When 8-hour exceedances for a 
given day were recorded in either of Maine's 8-hour nonattainment 
areas, back trajectories were run from locations in each of the 
nonattainment areas. For each ozone exceedance that was analyzed, back 
trajectories were run for each hour that recorded ozone in excess of 
0.08 parts per million, and run for multiple heights in the atmosphere. 
In all, Maine DEP ran over 1000 back trajectories for 61 separate 
exceedance days during 1998 to 2004.
    Maine then analyzed each of these back trajectories to see if there 
was potential impact from the NO<INF>X</INF> waiver area. These 
trajectory analyses show convincingly that the source region for 
Maine's 8-hour ozone exceedances are to the south and west of southern 
Maine. The trajectories also show convincingly that the proposed 
NO<INF>X</INF> waiver area does not contribute to Maine's 8-hour ozone 
nonattainment problems. This is identical to the conclusion that was 
reached for 1-hour ozone exceedances in southern Maine for the 1-hour 
NO<INF>X</INF> waiver approved by EPA in 1995.
    In addition, Maine provided NO<INF>X</INF> emission inventory data 
for the entire OTR and additional meteorological analyses to add 
further evidence that the proposed NO<INF>X</INF> waiver area does not 
contribute to ozone nonattainment in the two nonattainment areas of 
Maine or anywhere in the OTR. Whenever there are 8-hour ozone 
exceedances in New Hampshire or Massachusetts, the two states nearest 
to Maine, the winds are not from Maine. Therefore, Maine does not 
contribute to ozone nonattainment in Massachusetts, nor New Hampshire, 
the only two states in the OTR, outside Maine, where it is reasonable 
to expect that Maine's emissions might potentially contribute to ozone 
nonattainment. Moreover, EPA has performed extensive air quality 
modeling throughout the Northeast over the past several years in 
support of its Clean Air Interstate Rule (CAIR), and the ozone modeling 
domain used for the CAIR rule covers much of northern Maine. In the 
CAIR rulemaking, EPA did not find that Maine was significantly 
contributing to future ozone nonattainment anywhere in the CAIR domain, 
which includes the rest of the OTR plus most of the eastern half of the 
United State. Thus, the State of Maine was not included in the CAIR 
rule. EPA's CAIR modeling plus the data provided in Maine's submittals 
support this proposed approval of Maine's NO<INF>X</INF> waiver 
request.
    EPA's review of this request indicates that a NO<INF>X</INF> waiver 
is justified for Northern Maine. A TSD has been prepared on this action 
and contains a detailed analysis of Maine's request. EPA is proposing 
to approve the exemption request for the Northern Maine area from the 
Section 182(f) NO<INF>X</INF> requirements. EPA is soliciting public 
comments on the issues discussed in this notice or on other relevant 
matters. These comments will be considered before taking final action. 
Interested parties may participate in the Federal rulemaking procedure 
by submitting written comments to the EPA New England Regional Office 
listed in the ADDRESSES section of this notice.

III. Proposed Action

    EPA is proposing to approve the exemption request for the Northern 
and Western Maine area from the section 182(f) NO<INF>X</INF> 
requirements based upon the evidence provided by the State and the 
State's compliance with the requirements outlined in the applicable EPA 
guidance. This action proposes to exempt Oxford, Franklin, Somerset, 
Piscataquis, Penobscot, Washington, Aroostook, and portions of Hancock 
and Waldo counties from the requirements of nonattainment area NSR for 
new sources and modifications that are major for NO<INF>X</INF>, and 
NO<INF>X</INF> RACT on existing sources. If EPA determines based on 
future air quality analyses that NO<INF>X</INF> controls in this area 
are necessary for ozone attainment purposes, rulemaking may be 
initiated which may mean that this NO<INF>X</INF> exemption no longer 
applies.
    EPA is soliciting public comments on the issues discussed in this 
proposal or on other relevant matters. These comments will be 
considered before EPA takes final action. Interested parties may 
participate in the federal rulemaking procedure by submitting written 
comments to the EPA New England Regional Office listed in the ADDRESSES 
section of this action, or by submitting comments electronically, by 
mail, or through hand delivery/courier following the directions in the 
SUPPLEMENTARY INFORMATION, I. General Information section of this 
action.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). The 
proposed exemption does not create any new requirements, but allows 
suspension of the indicated requirements for the life of the exemption. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule suspends certain requirements, it does not contain any 
unfunded mandate or significantly or uniquely affect small governments, 
as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This

[[Page 49530]]

action also does not have federalism implications because it does not 
have substantial direct effects on the States, on the relationship 
between the National Government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), 
because it merely approves a state request to waive certain 
requirements, and does not alter the relationship or the distribution 
of power and responsibilities established in the Clean Air Act. This 
rule also is not subject to Executive Order 13045 ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove this submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a waiver 
request to require VCS in a submission that otherwise satisfies the 
provisions of the Clean Air Act. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: August 15, 2005.
Robert W. Varney,
Regional Administrator, EPA New England.
[FR Doc. 05-16814 Filed 8-23-05; 8:45 am]
BILLING CODE 6560-50-P


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