66748 Federal Register / Vol. 60, No. 247 / Tuesday, December 26, 1995 / Rules and Regulations

Under section 307(b)(1) of the Act, 42

U.S.C. 7607(b)(1), petitions for judicial

review of this action must be filed in the

United States Court of Appeals for the

appropriate circuit by February 26,

1996. Filing a petition for

reconsideration by the Administrator of

this final rule does not affect the finality

of this rule for purposes of judicial

review nor does it extend the time

within which a petition for judicial

review may be filed, and shall not

postpone the effectiveness of such rule

or action. This action may not be

challenged later in proceedings to

enforce its requirements. (See section

307(b)(2) of the Act, 42 U.S.C. 7607

(b)(2).)

This action has been classified as a

Table 3 action for signature by the

Regional Administrator under the

procedures published in the Federal

Register on January 19, 1989 (54 FR

2214–2225), as revised by a July 10,

1995, memorandum from Mary Nichols,

Assistant Administrator for Air and

Radiation. The Office of Management

and Budget (OMB) has exempted this

regulatory action from E.O. 12866

review.

Nothing in this action shall be

construed as permitting or allowing or

establishing a precedent for any future

request for a revision to any state

implementation plan. Each request for

revision to the state implementation

plan shall be considered separately in

light of specific technical, economic,

and environmental factors and in

relation to relevant statutory and

regulatory requirements.

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C. 603

and 604. Alternatively, EPA may certify

that the rule will not have a significant

impact on a substantial number of small

entities. Small entities include small

businesses, small not-for-profit

enterprises, and government entities

with jurisdiction over populations of

less than 50,000.

SIP approvals under section 110 and

subchapter I, part D of the CAA do not

create any new requirements, but

simply approve requirements that the

State is already imposing. Therefore,

because the Federal SIP approval does

not impose any new requirements, I

certify that it does not have a significant

impact on any small entities affected.

Moreover, due to the nature of the

Federal-state relationship under the

CAA, preparation of a regulatory

flexibility analysis would constitute

Federal inquiry into the economic

reasonableness of state action. The CAA

forbids EPA to base its actions

concerning SIPs on such grounds.

Union Electric Co. v. U.S. E.P.A., 427

U.S. 246, 256–66 (S.Ct. 1976); 42 U.S.C.

section 7410(a)(2) and 7410(k)(3).

Under sections 202, 203, and 205 of

the Unfunded Mandates Reform Act of

1995 (‘‘Unfunded Mandates Act’’),

signed into law on March 22, 1995, EPA

must undertake various actions in

association with proposed or final rules

that include a Federal mandate that may

result in estimated costs of $100 million

or more to the private sector, or to State,

local, or tribal governments in the

aggregate.

Through submission of this state

implementation plan or plan revision,

the State and any affected local or tribal

governments have elected to adopt the

program provided for under the Clean

Air Act. These rules may bind State,

local and tribal governments to perform

certain actions and also require the

private sector to perform certain duties.

To the extent that the rules being

approved by this action will impose no

new requirements; such sources are

already subject to these regulations

under State law. Accordingly, no

additional costs to State, local, or tribal

governments, or to the private sector,

result from this action. EPA has also

determined that this final action does

not include a mandate that may result

in estimated costs of $100 million or

more to State, local, or tribal

governments in the aggregate or to the

private sector.

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Reporting and recordkeeping

requirements.

Dated: October 2, 1995.

Patrick M. Tobin,

Acting Regional Administrator.

Part 52 of chapter I, title 40, Code of

Federal Regulations, is amended as

follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

Subpart RR—Tennessee

2. Section 52.2220, is amended by

adding paragraph (c)(132) to read as

follows:

§ 52.2220 Identification of plan.

* * * * *

(c) * * *

(132) Revisions to the Knox County

Air Pollution Control Regulations

submitted by the Tennessee Department

of Environment and Conservation on

June 28, 1994. These consist of revisions

to appeals, judicial review, and

violations of the air pollution

regulations in Knox County.

(i) Incorporation by reference.

Knox County Air Pollution Control

Regulations, Sections 29.1.B, 29.3,

30.1.A, and 30.1.D adopted May 25,

1994.

[FR Doc. 95–31036 Filed 12–22–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 52

[ME26–1–7263a; FRL–5345–9]

Approval and Promulgation of

Implementation Plans; Maine; NOX

Exemption Request for Northern Maine

and NOX Control Approval

AGENCY: United States Environmental

Protection Agency (EPA).

ACTION: Direct final rule.

SUMMARY: The EPA is approving, in

final, a limited exemption request from

the requirements contained in section

182(f) of the Clean Air Act (Act) for the

Northern Maine area (specifically,

Oxford, Franklin, Somerset, Piscataquis,

Penobscot, Washington, Aroostook,

Hancock and Waldo Counties). These 9

counties, as with the rest of the State of

Maine, are part of the Ozone Transport

Region (OTR) as provided for in section

184(a) of the Clean Air Act. Section

182(f) in combination with section 184

(relating to ozone transport regions) of

the Act requires States in the OTR, such

as Maine, to adopt reasonably available

control technology (RACT) rules for

major stationary sources of nitrogen

oxides (NOX) and to provide for

nonattainment area new source review

(NSR) for new sources and

modifications that are major for NOX.

This exemption request, submitted by

the State of Maine on September 7,

1995, is based on a demonstration that

NOX emissions in this 9 county area are

not impacting Maine’s moderate

nonattainment areas or other

nonattainment areas in the Ozone

Transport Region (OTR) during times

when elevated ozone levels are

monitored in those areas. As such,

additional reductions in NOX emissions

from these 9 counties beyond what the

state regulation would provide for are

not necessary for attainment in these

areas currently in nonattainment, and,

because they do not contribute to the

ozone problem anywhere in the OTR are

also not necessary for purposes of

showing future attainment for any other
Federal Register / Vol. 60, No. 247 / Tuesday, December 26, 1995 / Rules and Regulations 66749

area in the OTR. Thus, as provided for

in section 182(f)(2), additional NOX

reductions in these areas would

constitute excess reductions that can be

waived under the Clean Air Act. EPA

believes the State’s demonstration is

appropriate and meets the requirements

of section 182(f)(2). Maine has requested

that EPA combine its approval of this

NOX exemption with its approval of

NOX controls for existing sources in

Northern Maine that were submitted to

EPA on August 5, 1994 for purposes of

meeting the Act’s NOX RACT

requirements. Consequently, this action

approves a full exemption from

nonattainment NSR requirements for

NOX, but only a limited exemption from

NOX control measures for existing

sources that would go beyond what the

State regulations provide for.

DATES: This action will become effective

February 26, 1996, unless notice is

received by January 25, 1996 that

adverse or critical comments will be

submitted. If the effective date is

delayed, timely notice will be published

in the Federal Register.

ADDRESSES: Comments may be mailed to

Susan Studlien, Deputy Director, Office

of Ecosystem Protection, U.S.

Environmental Protection Agency,

Region I, JFK Federal Bldg., Boston, MA

02203. Copies of the State submittal and

EPA’s technical support document are

available for public inspection during

normal business hours, by appointment

at the Office of Ecosystem Protection,

U.S. Environmental Protection Agency,

Region I, One Congress Street, 10th

floor, Boston, MA and the Bureau of Air

Quality Control, Department of

Environmental Protection, 71 Hospital

Street, Augusta, ME 04333.

FOR FURTHER INFORMATION CONTACT:

Robert C. Judge, Environmental

Engineer, Air Quality Planning (ATS),

United States Environmental Protection

Agency, Region 1, JFK Federal Building,

Boston, MA 02203. (617) 565–4874.

SUPPLEMENTARY INFORMATION:

I. Background

The air quality planning requirements

for the reduction of NOX emissions are

set out in section 182(f) of the Act.

Section 182(f) of the Act requires States

with areas designated and classified as

moderate nonattainment and above for

ozone, or in ozone transport regions, to

impose the same control requirements

for major stationary sources of NOX as

apply to major stationary sources of

volatile organic compounds (VOC).

These requirements include the

adoption of RACT rules for major

stationary sources and nonattainment

area NSR for major new sources and

major modifications. Section 182(f)

provides further that these requirements

do not apply for areas inside an ozone

transport region if EPA determines that

reductions of NOX from such areas

would not contribute to net ozone

benefits in the OTR. In addition,

implementation of NOX controls may be

limited if EPA determines it is necessary

to avoid achieving excess reductions.

Also, NOX-related general conformity

provisions (see 58 FR 63214) would not

apply in an area that is granted a section

182(f) exemption. For marginal and

below ozone nonattainment areas such

as those addressed by today’s action, a

section 182(f) exemption relieves the

transportation conformity requirements

of 40 CFR 51.436–51.440 and 40 CFR

93.122–93.124 for NOX (see 60 FR

44795).

The counties that are the subject of

this action, Piscataquis, Penobscot,

Washington, and Aroostook counties

and the northern portions of Oxford,

Franklin, and Somerset counties, are

designated attainment for the National

Ambient Air Quality Standard (NAAQS)

for ozone. The southern portions of

Oxford, Franklin, and Somerset counties

are presently designated nonattainment

but have never recorded exceedances of

the ozone NAAQS and are not classified

under the Clean Air Act. The Hancock

and Waldo County Area is classified as

marginal nonattainment under the Clean

Air Act but presently has air quality

better than the NAAQS for ozone.

However, each of the counties for which

Maine is seeking an exemption is within

the OTR. For areas within the OTR, the

application of NOX requirements under

the Clean Air Act may be limited if it

is shown that additional NOX

reductions are excess to attainment

needs throughout the region. EPA

believes, in the case of these counties at

the northern extremity of the OTR, that

NOX requirements can be waived

because the State has submitted an

acceptable demonstration that

additional reductions beyond what the

State regulations provide for are not

necessary for nonattainment areas in the

State to attain, and because emissions

from these areas are not contributing to

the ozone nonattainment problem for

any other area in the OTR, are also not

necessary for purposes of showing

future attainment anywhere in the OTR.

Maine has made this showing through

extensive air modeling trajectory

analyses.

Scope of Exemptions

If the EPA Administrator determines,

under Section 182(f) of the Act, that

additional reductions of NOX are excess,

the area at issue shall automatically (i.e.,

a State would not need to submit an

exemption request for each requirement)

be exempt from the following

requirements (as applicable): the NOXrelated general conformity provisions,

the NOX-related transportation

conformity provisions in 40 CFR

51.436–51.440 and 40 CFR 93.122–

93.124 (‘‘build/ no-build test’’), NOX

RACT, and nonattainment area NSR for

new sources and modifications that are

major for NOX. Additionally, NOX

emission reductions would not be

required of an enhanced automobile

inspection and maintenance (I/M)

program. Because I/M is not required by

the Act in Northern Maine, EPA’s action

on this request has no impact on I/M

requirements.

Transportation Conformity

The transportation conformity rule,

entitled ‘‘Criteria and Procedures for

Determining Conformity to State or

Federal Implementation Plans of

Transportation Plans, Programs, and

Projects Funded or Approved Under

Title 23 U.S.C. or the Federal Transit

Act,’’ was published in the November

24, 1993 Federal Register (58 FR

62188). The rule was promulgated

under section 176(c)(4) of the Act.

The transportation conformity rule

requires emissions analysis of motor

vehicle NOX emissions for ozone

nonattainment and maintenance areas

in order to determine the conformity of

transportation plans and programs to

state implementation plan requirements.

This analysis must demonstrate that the

NOX emissions which would result from

the transportation system if the

proposed transportation plan and

program were implemented are within

the total allowable level of NOX

emissions from highway and transit

motor vehicles as identified in a

submitted or approved attainment

demonstration or maintenance plan.

Until an attainment demonstration,

fifteen-percent rate-of-progress plan (if

applicable), or maintenance plan is

approved by EPA, the emissions

analysis of the transportation system

must also satisfy the ‘‘build/no-build’’

test. That is, the analysis must

demonstrate that emissions from the

transportation system, if the proposed

transportation plan and program were

implemented, would be less than the

emissions from the transportation

system if only the previous applicable

transportation plan and program were

implemented. Furthermore, the regional

emissions analysis must show that

emissions from the transportation

system, if the transportation plan or

program were implemented, would be

lower than 1990 levels.
66750 Federal Register / Vol. 60, No. 247 / Tuesday, December 26, 1995 / Rules and Regulations

The transportation conformity rules

provide for an exemption from these so

called ‘‘build/no build’’ requirements

with respect to NOX if the Administrator

determines that additional reductions of

NOX would not contribute to attainment

of the ozone NAAQS. However, all other

NOX provisions in the transportation

conformity rule would apply, including

the requirement for consistency with the

NOX motor vehicle emissions budget in

a submitted control strategy state

implementation plan, or an approved

maintenance plan.

The areas addressed in today’s action

are not required to submit a control

strategy implementation plan revision

(i.e., an attainment demonstration or

15% RFP plan). Further, only a portion

of these areas are required to satisfy the

‘‘build/ no-build test.’’ A section 182(f)

exemption would relieve this

requirement for NOX for these areas, but

once any maintenance plan is approved

by EPA, consistency with the NOX

budget would be required.

General Conformity

The general conformity rule, entitled

‘‘Determining Conformity of General

Federal Actions to State or Federal

Implementation Plans,’’ was published

in the Federal Register on November 30,

1993 (58 FR 63214). The rule was

promulgated under section 176(c)(4) of

the Act. The general conformity rule

provides for an exemption from NOX

requirements if the area has been

exempted under section 182(f) of the

Act.

II. Criteria for Evaluation of Section

182(f) Exemption Requests

The criteria established for the

evaluation of an exemption request from

the Section 182(f) requirements are set

forth in 2 memoranda from John S.

Seitz, Director, Office of Air Quality

Planning and Standards, dated May 27,

1994 and February 8, 1995, both entitled

‘‘Section 182(f) Nitrogen Oxides (NOX)

Exemptions—Revised Process and

Criteria.’’ Additional guidance is

provided in a document entitled

‘‘Guideline for Determining the

Applicability of Nitrogen Oxides

Requirements Under Section 182(f),’’

dated December 1993, from EPA, Office

of Air Quality Planning and Standards,

Air Quality Management Division.

III. State Submittal

On September 7, 1995, the State of

Maine submitted an exemption request

from the requirements contained in

Section 182(f) of the Clean Air Act (Act)

for the Northern Maine area

(specifically, Oxford, Franklin,

Somerset, Piscataquis, Penobscot,

Washington, Aroostook, Hancock and

Waldo Counties). This exemption

request is based on a demonstration that

nitrogen oxides (NOX) emissions in this

area are not impacting Maine’s moderate

nonattainment areas or other

nonattainment areas in the Ozone

Transport Region (OTR) during times

when elevated ozone levels are

monitored in those areas. As such,

additional reductions in NOX emissions

from these 9 counties, that is, NOX

reductions beyond what the state

regulations contemplate providing for,

as explained further below, are not

necessary for nonattainment areas in the

State to attain, and, are also not

necessary for attainment purposes

anywhere in the OTR. Under these

circumstances, as section 182(f)(2)

provides, such additional reductions

may be waived as excess reductions.

While Maine generally is requesting an

exemption from applicable NOX

requirements for this 9 county area, it

has requested a limited exemption from

NOX control measure requirements that

apply for existing stationary sources in

these areas. Maine has requested that

EPA combine its approval of the

exemption request with its approval of

NOX controls for existing stationary

sources in the Northern Maine area

previously submitted to EPA on August

5, 1994. In approving this NOX

exemption request, EPA considered the

impact of the limited exemption from

NOX requirements for existing sources.

EPA is approving this action because,

under section 182(f)(2), EPA has

determined that additional NOX

reductions from these areas would be

excess.

IV. Analysis of State Submittal and

Supporting Material

EPA has reviewed the material

submitted by the State of Maine in

support of this request. As mentioned

above, these areas are presently

monitoring attainment of the National

Ambient Air Quality Standard (NAAQS)

for ozone. For ozone, an area is

considered to be monitoring attainment

of the NAAQS if there are no violations,

as determined in accordance with 40

CFR Part 50.9, based on quality assured

monitoring data from three complete

consecutive calendar years. A violation

of the ozone NAAQS occurs when the

expected number exceedances per year

(over a three year period) is greater than

1.0. An exceedance occurs when the

daily maximum hourly ozone

concentration equals or exceeds 0.125

parts per million (ppm). Only Hancock

and Waldo Counties, which is a

marginal nonattainment area, were

classified under the Clean Air Act, as

amended in 1990. This area has only

measured a single exceedance of the

standard since 1992.

Thus, the annual average expected

exceedances in the latest three year

period is less than 1.0 and the entire

area is meeting the air quality standard

for ozone. In order for the Hancock and

Waldo Counties area to be redesignated

to attainment, EPA will need to take

action on a redesignation request,

including a maintenance plan.

A more detailed summary of the

ozone monitoring data for both areas is

provided in the EPA technical support

document prepared for this action.

V. Air Trajectory Analyses

Maine prepared trajectory analyses for

each day when the ozone standard was

exceeded in either New Hampshire or

Maine. Additionally, Maine prepared

detailed statistical trajectory analyses

for many days based on ozone monitors

just southwest of this 9 county area.

Hundreds of data points were analyzed,

and this effort will be described in more

detail below.

Modeling

EPA has performed extensive air

quality modeling throughout the

Northeast for the past several years

utilizing the regional oxidant model

(ROM). This modeling domain covers

virtually all of northern Maine.

Essentially, all ROM analyses have

shown no actual or predicted

exceedances in this 9 county area,

which is northeast of the remainder of

the OTR. (It should be noted that

exceedances were predicted in the

coastal portions of Waldo, Hancock, and

Washington Counties in 1987 and 1988,

and, during this timeframe, exceedances

were actually measured in Hancock and

Waldo Counties forming the basis for

their designation as marginal ozone

nonattainment areas. No exceedances

were measured in Washington County.

However, since 1992, only Hancock

County has measured a single

exceedance of the standard. Given these

analyses, and the direction of the ozone

‘‘plume,’’ it is reasonable to expect

negligible contribution from these areas

to the overall ozone nonattainment

situation in the OTR.)

However, ROM modeling analyses are

not intended to actually predict

attainment or nonattainment. EPA

guidance requires more extensive

modeling using photochemical grid

modeling in most areas. While this more

sophisticated modeling is technically

not required anywhere in Maine, in

concert with Connecticut,

Massachusetts, New Hampshire, Rhode

Island, and Vermont, extensive analyses
Federal Register / Vol. 60, No. 247 / Tuesday, December 26, 1995 / Rules and Regulations 66751

are being performed utilizing the urban

airshed model (UAM). The EPA UAM

modeling guideline requires that

modeling domains be sufficiently large

to analyze the effects of ozone and

ozone precursors throughout the entire

area of concern. Based on extensive

analyses, including ROM results, EPA

agreed that the UAM modeling domain

would not even cover the vast majority

of this 9 county area (it does include a

portion of Oxford county based simply

on the geographical shape of the county

and the size of the domain).

Consequently, the UAM modeling does

not reflect the effects of ozone and

ozone precursors from the northern

Maine area. On the other hand, the

determination that the northern Maine

area could be excluded from the

modeling domain reflects the degree of

certitude that ozone precursor

reductions from this area would not

play a significant role in the process of

attaining the ozone standard in the OTR.

The ‘‘Back Trajectory Analyses’’ and

the ‘‘Receptor Oriented Analyses’’

include the most substantive technical

portion of the September 7, 1995 NOX

exemption request and are described

below.

Back Trajectory Analyses

Trajectories are the path of an air

mass over time; back trajectories trace

the path of an air mass back in time to

determine the origin of that air mass.

The trajectory analyses, which use the

HY-SPLIT trajectory model, show that

for the ozone monitoring sites chosen,

(Port Clyde, ME; Rye, NH; Bennington,

VT; and Bridgeport, CT) the back

trajectories do not pass over northern

Maine and demonstrate that northern

Maine cannot be a source region for

ozone on days with elevated ozone

levels. (Sites were chosen to represent a

variety of locations throughout New

England.) Trajectories were performed

for every day that the monitor of interest

exceeded 0.10 ppm (at 3:00 pm)

between 1989 and 1993. Occasionally,

some of these back trajectories (i.e.,

those based on Port Clyde monitored

readings) pass over extreme western

Maine, specifically Oxford County.

Based on the small amount of emissions

emitted from Oxford County, it is

unlikely that Oxford County plays any

measurable role in the ozone found in

Port Clyde on days that Port Clyde

exceeded 0.12 ppm.

Furthermore, EPA feels that the HYSPLIT model, in this application in

Maine, has a slight westerly bias in its

back trajectory approach over what the

true low-level/surface back trajectory is

on days with high ozone potential.

Given this, it is probable that Oxford

County emissions do not even pass over

Port Clyde on the days in question. This

westerly bias is caused by HY-SPLIT’s

reliance on the Nested Grid Model

(NGM) winds which are almost

exclusively upper-air winds, not surface

winds. The technical support for this

effort describes this phenomenon in

more detail, and can be found in the

docket for this action. Nevertheless, the

back trajectory work Maine has

performed does show that a NOX

exemption for the 9 counties is justified.

Receptor Oriented Analyses

The receptor analyses, also part of

Maine’s technical support, is just a

different way of looking at back

trajectories from the HY–SPLIT model.

The NOX exemption request states:

‘‘Residence time analysis performed for

these ozone monitoring sites involves

taking a large number of individual

back-trajectories from a site and

examining the statistical relationship

between the ozone monitored at the site

and the location along each backtrajectory.’’ The analysis goes on to state

that although the technique has been

shown to work with non-chemically

reactive air pollutants, it may not

perform as well with ozone.

Nevertheless, the exemption request

provides that: ‘‘the technique does

indicate the primary directional biases

from which regional scale air mass

transport may be suspected.’’

The receptor oriented analysis also

shows that the 9 county NOX exemption

area contributes much less ‘‘ozone’’ to

southern and coastal Maine (Gardiner

and Port Clyde) than do other areas to

the west and south. First, Maine

performed analyses which show the

upwind locations of air masses 3–7

hours prior to ozone concentrations

exceeding 0.040 ppm at either Gardiner

or Port Clyde, Maine from 1989 to 1993.

Next, they ran 25 hour back trajectories

for every day in which an air mass

passed over different portions of New

England from 1989 to 1993. Analysis of

these graphical depictions supports

Maine’s contention that these northern

counties do not contribute to elevated

ozone levels in Maine, or elsewhere in

the OTR. These two types of

meteorological analyses support Maine’s

exemption request essentially by

demonstrating that emissions from these

areas do not generally pass over any

other part of the OTR on days when

even moderate levels of ozone are

measured.

VI. Maine’s NOX Rules

On August 5, 1994, the Maine

Department of Environmental Protection

(DEP) submitted to EPA, Chapter 138 of

the Maine DEP’s regulations,

‘‘Reasonably Available Control

Technology for Facilities that Emit

Nitrogen Oxides,’’ for inclusion into the

State Implementation Plan (SIP). On

September 7, 1995, the Maine DEP

submitted a request to the EPA to grant

a limited exemption from the

requirements of NOX RACT for facilities

located in the non-moderate areas of the

State (these 9 counties). In its NOX

exemption request, Maine requested

that EPA approve the appropriate

portions of Chapter 138 in combination

with approving the exemption. At this

time, EPA’s action on the NOX control

rule submittal is solely for the 9 county

area. Thus, EPA is approving Chapter

138 only as it applies to the 9 county

area in Maine.

Although EPA agrees that Chapter 138

sets enforceable conditions which will

achieve a level of NOX control, EPA is

not evaluating these standards set in

Chapter 138 as to whether or not they

represent RACT for all of the emission

units located in these 9 counties. EPA

is also not evaluating this rule in regard

to the requirements for the remaining 7

counties in Maine. While EPA’s

preliminary analysis suggests that this

level of control does not represent

RACT for these 9 counties, EPA will be

taking formal action on the rule as it

pertains to the remaining 7 counties at

a later date. Based on the analysis

prepared as part of the limited

exemption request, EPA has determined

that NOX reductions, beyond what is

required by Chapter 138 for facilities in

the non-moderate areas, are not

necessary for purposes of showing

future attainment in the Maine moderate

nonattainment areas or any areas in the

OTR. In EPA’s NOX Supplement to the

General Preamble for implementing

nonattainment requirements, EPA noted

that states remain free to reduce NOX

emissions for a variety of reasons. 57

Fed. Reg. 55621, 55627 (Nov. 25, 1992).

As long as EPA determines that these

NOX reductions are not

counterproductive or will not delay

ozone attainment, EPA will approve

them into the SIP. There is no evidence

that the NOX reductions from Chapter

138 are counterproductive, and the

conclusion of the demonstration

supporting the exemption request is that

additional NOX reductions from this

area are not necessary for purposes of

attainment anywhere in the OTR.

Therefore, although EPA is making no

formal judgement as to whether this

level of control is RACT, EPA believes

that the controls required by Chapter

138 in the 9 non-moderate counties will

strengthen the SIP.
66752 Federal Register / Vol. 60, No. 247 / Tuesday, December 26, 1995 / Rules and Regulations

As stated above, the analysis

contained in the State’s limited

exemption request assumes that

reductions beyond those required by

Chapter 138 in the non-moderate areas

are not necessary for purposes of

attainment for either the moderate

nonattainment areas or other states in

the OTR. Therefore, emission reductions

achieved from units operating at rates

below the limitations of Chapter 138 in

this 9 county area cannot be considered

creditable for the purpose of facilities

complying with either New Source

Review offsetting or NOX RACT

requirements at facilities located in the

moderate nonattainment areas (see the

TSD prepared for this action for

additional details).

VII. New Source Review

EPA is not taking action on Maine’s

New Source Review rule in this

rulemaking. However, in a separate

action, EPA is proposing to approve

revisions to Maine’s New Source

Review rules. These revisions include

an exemption provision for major new

sources or major modifications of NOX.

This provision states that lowest

achievable emission rate (LAER) and

offsets for NOX shall not apply in those

areas that have received an exemption

from the EPA under Section 182(f) of

the CAA.

VIII. Withdrawal of the Exemptions

Continuation of the Section 182(f)

exemptions granted herein is based on

the demonstration that NOX emissions

in this area are not impacting Maine’s

moderate nonattainment areas or other

nonattainment areas in the Ozone

Transport Region (OTR) during times

when elevated ozone levels are

monitored in those areas. If future air

quality analyses demonstrate that

additional NOX controls are necessary

and the exemption should no longer

apply, EPA will provide notice to the

public in the Federal Register. A

determination that the NOX exemption

no longer applies would mean that the

NOX NSR and the NOX-related general

conformity provisions (see 58 FR 63214)

would immediately be applicable. For

the marginal and below ozone

nonattainment areas addressed by

today’s action, rescinding this section

182(f) exemption would no longer

relieve the transportation conformity

requirements of 40 CFR 51.436–51.440

and 40 CFR 93.122–93.124 for NOX (see

60 FR 44795). The requirement for NOX

RACT would also be applicable, with a

reasonable time provided as necessary

to allow major stationary sources subject

to the RACT requirements to purchase,

install and operate the required

controls. The EPA believes that the State

may provide sources a reasonable time

period after the EPA determination to

actually meet the RACT emission limits.

The EPA expects such time period to be

as expeditious as practicable, but in no

case longer than 24 months.

IX. Miscellaneous Topics

Comments From Parties Interested in

Previous NOX Exemptions

An adverse comment letter has been

previously submitted by three

environmental groups and contained

generic comments objecting to the EPA’s

general policy on NOX exemptions. The

three environmental groups who

submitted the generic comments

requested that these comments be

included in each EPA rulemaking action

on NOX exemption requests. While

some of the comments are not entirely

relevant to this action, we have

responded to them in an effort to be

complete. EPA is treating these

comments as part of the administrative

record for this action, and they may

serve as the basis for a challenge to this

final action without being resubmitted

to the Agency in response to the

proposed rule.

Comment

In the past, commenters argued that

NOX exemptions are provided for in two

separate parts of the Act, in sections

182(b)(1) and 182(f). Because the NOX

exemption tests in sections 182(b)(1)

and 182(f)(1) include language

indicating that action on such requests

should take place ‘‘when [EPA]

approves a plan or plan revision,’’ these

commenters conclude that all NOX

exemption determinations by the EPA,

including exemption actions taken

under the petition process established

by section 182(f)(3), must occur during

consideration of an approvable

attainment or maintenance plan, unless

the area has been redesignated as

attainment. The commenters also argue

that even if the petition procedures of

section 182(f)(3) may be used to relieve

areas of certain NOX requirements,

exemptions from the NOX conformity

requirements must follow the process

provided in section 182(b)(1), since this

is the only provision explicitly

referenced by section 176(c), the Act’s

conformity provisions.

Response

Section 182(f) contains very few

details regarding the administrative

procedures for acting on NOX

exemption requests. The absence of

specific guidelines by Congress leaves

the EPA with discretion to establish

reasonable procedures consistent with

the requirements of the Administrative

Procedure Act (APA).

The EPA disagrees with the

commenters regarding the process for

considering NOX exemption requests

under section 182(f), and instead

believes that sections 182(f)(1) and

182(f)(3) provide independent

procedures by which the EPA may act

on NOX exemption requests. The

language in section 182(f)(1), which

indicates that the EPA should act on

NOX exemptions in conjunction with

action on a plan or a plan revision, does

not appear in section 182(f)(3). While

section 182(f)(3) references section

182(f)(1), the EPA believes that this

reference encompasses only the

substantive tests in paragraph (1) [and

by extension, paragraph (2)], not the

procedural requirement that the EPA act

on exemptions only when acting on

State Implementation Plans (SIPs).

Additionally, section 182(f)(3) provides

that ‘‘person[s]’’ [which section 302(e)

of the Act defines to include States] may

petition for NOX exemptions ‘‘at any

time,’’ and requires the EPA to make its

determination within six months of the

petition’s submission. These key

differences lead EPA to believe that

Congress intended the exemption

petition process of paragraph (3) to be

distinct and more expeditious than the

longer plan revision process intended

under paragraph (1).

With respect to major stationary

sources, section 182(f) requires States to

adopt NOX RACT and NSR rules, unless

exempted. These rules were generally

due to be submitted to the EPA by

November 15, 1992. Thus, in order to

avoid the CAA sanctions, areas seeking

a NOX exemption would have needed to

submit this exemption request for EPA

review and rulemaking action several

months before November 15, 1992. In

contrast, the CAA specifies that the

attainment demonstrations were not due

until November 1993 or 1994 (and EPA

may take 12 to 18 months to approve or

disapprove the demonstrations). For

marginal ozone nonattainment areas

(subject to NOX NSR), no attainment

demonstrations are called for in the

CAA. For areas seeking redesignation to

attainment of the ozone NAAQS, the

CAA does not specify a deadline for

submittal of maintenance

demonstrations (in reality, EPA would

generally consider redesignation

requests without accompanying

maintenance plans to be unacceptable).

Clearly, the CAA envisions the

submittal of and EPA action on NOX

exemption requests, in some cases, prior

to submittal of attainment or

maintenance demonstrations. It is
Federal Register / Vol. 60, No. 247 / Tuesday, December 26, 1995 / Rules and Regulations 66753

important to note that none of these

areas in Maine even needed to submit

attainment demonstrations.

With respect to the comment that

section 182(b)(1) is the appropriate

authority for granting interim-period

transportation conformity NOX

exemptions, EPA agrees with the

commenters and has published an

interim final rule that changes the

transportation conformity rule’s

reference from section 182(f) to section

182(b)(1) as the correct authority under

the Act for waiving the NOX build/nobuild and less-than-1990 emissions tests

for certain areas. (see 60 FR 44795)

However, EPA also notes that section

182(b)(1), by its terms, only applies to

moderate and above ozone

nonattainment areas. Consequently,

EPA believes that the interim-reductions

requirements of section 176(c)(3)(A)(iii),

and hence the authority provided in

section 182(b)(1) to grant relief from

those interim-reduction requirements,

apply only with respect to those areas

that are subject to section 182(b)(1). EPA

intends to continue to apply the

transportation conformity rule’s build/

no-build and less-than-1990 emissions

tests for purposes of implementing the

requirements of section 176(c)(1), and

EPA intends to continue to provide

relief from those requirements under

section 182(f). In addition, because

general federal actions are not subject to

section 176(c)(3)(A)(iii), which

explicitly references section 182(b)(1),

EPA will also continue to offer relief

under section 182(f)(3) from the

applicable NOX requirements of the

general conformity rule.

In order to demonstrate conformity,

transportation-related federal actions

that are taken in ozone nonattainment

areas not subject to section 182(b)(1)

and, hence, not subject to section

176(c)(3)(A)(iii) must still be consistent

with the criteria specified under section

176(c)(1). Specifically, these actions

must not, with respect to any standard,

cause or contribute to new violations,

increase the frequency or severity of

existing violations, or delay attainment.

In addition, such actions must comply

with the relevant requirements and

milestones contained in the applicable

state implementation plan, such as

reasonable further progress schedules,

assumptions specified in the attainment

or maintenance demonstrations,

numerical emission limits, or

prohibitions. EPA believes that the

build/no-build and less-than-1990

emissions tests provide an appropriate

basis for such areas to demonstrate

compliance with the above criteria.

As noted earlier, EPA intends to

continue to offer relief under section

182(f) from the interim NOX

requirements of the conformity rules

that would apply under section

176(c)(1) for the areas not subject to

section 182(b)(1) in the manner

described above. EPA believes this

approach is consistent both with the

way NOX requirements in ozone

nonattainment areas are treated under

the Act generally, and under section

182(f) in particular. The basic approach

of the Act is that NOX reductions should

apply when beneficial to an area’s

attainment goals, and should not apply

when unhelpful or counterproductive.

Section 182(f) reflects this approach but

also includes specific substantive tests

which provide a basis for EPA to

determine when NOX requirements

should not apply. There is no

substantive difference between the

technical analysis required to make an

assessment of NOX impacts on

attainment in a particular area whether

undertaken with respect to mobile

source or stationary source NOX

emissions. Moreover, where EPA has

determined that NOX reductions will

not benefit attainment or would be

counterproductive in an area, the EPA

believes it would be unreasonable to

insist on NOX reductions for purposes of

meeting reasonable further progress or

other milestone requirements. Thus,

even as to the conformity requirements

of section 176(c)(1), EPA believes it is

reasonable and appropriate, first, to

offer relief from the applicable NOX

requirements of the general and

transportation conformity rules in areas

where such reductions would not be

beneficial and, second, to rely in doing

so based on the exemption tests

provided in section 182(f).

Comment

Commenters argue that waiver of NOX

control requirements is unlawful if such

a waiver would impede attainment and

maintenance of the ozone standard in

downwind areas.

Response

These areas in Maine are generally

considered downwind of the remainder

of the United States. Maine’s technical

demonstration showed clearly that the

waiver of these controls will not impede

attainment or maintenance of the

NAAQS for ozone standard anywhere.

Comment

Comments were received regarding

the scope of exemption of areas from the

NOX requirements of the conformity

rules. The commenters argue that such

exemptions waive only the

requirements of section 182(b)(1) to

contribute to specific annual reductions;

not the requirement that conformity

SIPs contain information showing the

maximum amount of motor vehicle NOX

emissions allowed under the

transportation conformity rules and,

similarly, the maximum allowable

amounts of any such NOX emissions

under the general conformity rules. The

commenters admit that, in prior

guidance, EPA has acknowledged the

need to amend a drafting error in the

existing transportation conformity rules

to ensure consistency with motor

vehicle emissions budgets for NOX, but

want EPA, in actions on NOX

exemptions, to explicitly affirm this

obligation and to also avoid granting

waivers until a budget controlling future

NOX increases is in place.

Response

EPA has recently addressed this issue

through rulemaking and this rulemaking

appropriately reflects EPA’s position on

this issue. (see 60 FR 57179)

Comment

Commenters argue that the Act does

not authorize any waiver of the NOX

reduction requirements until conclusive

evidence exists that such reductions are

counterproductive.

Response

EPA does not agree with this

comment since it ignores the

Congressional intent as evidenced by

the plain language of section 182(f), the

structure of the Title I ozone subpart as

a whole, and relevant legislative history.

By contrast, in developing and

implementing its NOX exemption

policies, EPA has sought an approach

that reasonably accords with that intent.

Section 182(f), in addition to imposing

control requirements on major

stationary sources of NOX similar to

those that apply for sources of VOC, also

provides for an exemption (or

limitation) from application of these

requirements if, under one of several

tests, EPA determines that in certain

areas NOX reductions would generally

not be beneficial towards attainment of

the ozone standard. In section 182(f)(1),

Congress explicitly conditioned action

on NOX exemptions on the results of an

ozone precursor study required under

section 185B of the Act. Because of the

possibility that reducing NOX in an area

may either not contribute to ozone

attainment or may cause the ozone

problem to worsen, Congress included

attenuating language, not just in section

182(f), but throughout Title I of the Act,

to avoid requiring NOX reductions

where such would not be beneficial or

would be counterproductive. In

describing these various ozone
66754 Federal Register / Vol. 60, No. 247 / Tuesday, December 26, 1995 / Rules and Regulations

provisions, including section 182(f), the

House Conference Committee Report

states in the pertinent part: ‘‘[T]he

Committee included a separate NOX/

VOC study provision in section [185B]

to serve as the basis for the various

findings contemplated in the NOX

provisions. The Committee does not

intend NOX reduction for reduction’s

sake, but rather as a measure scaled to

the value of NOX reductions for

achieving attainment in the particular

ozone nonattainment area.’’ H.R. Rep.

No. 490, 101st Cong., 2d Sess. 257–258

(1990).

As noted in response to an earlier

comment, the command in section

182(f)(1) that EPA ‘‘shall consider’’ the

185B report taken together with the

timeframe the Act provides for

completion of the report and for acting

on NOX exemption petitions clearly

demonstrate that Congress believed the

information in the completed section

185B report would provide a sufficient

basis for EPA to act on NOX exemption

requests, even absent the additional

information that would be included in

affected areas’ attainment or

maintenance demonstrations. While

there is no specific requirement in the

Act that EPA actions granting NOX

exemption requests must await

‘‘conclusive evidence,’’ as the

commenters argue, there is also nothing

in the Act to prevent EPA from

revisiting an approved NOX exemption

if warranted by additional, current

information.

In addition, the EPA believes, as

described in EPA’s December 1993

guidance, that section 182(f)(1) of the

Act provides that the new NOX

requirements shall not apply (or may be

limited to the extent necessary to avoid

excess reductions) if the Administrator

determines that any one of the following

tests is met:

(1) In any area, the net air quality

benefits are greater in the absence of

NOX reductions from the sources

concerned;

(2) In nonattainment areas not within

an ozone transport region, additional

NOX reductions would not contribute to

ozone attainment in the area; or

(3) In nonattainment areas within an

ozone transport region, additional NOX

reductions would not produce net ozone

air quality benefits in the transport

region.

Based on the plain language of section

182(f), EPA believes that each test

provides an independent basis for a full

or limited NOX exemption.

Only the first test listed above is

based on a showing that NOX reductions

are ‘‘counter productive.’’ If one of the

tests is met (even if another test is failed

or not applied), the section 182(f) NOX

requirements would not apply or, under

the excess reductions provision, a

portion of these requirements would not

apply.

Processing NOX Exemptions

As stated above, section 182(f)

contains very few details regarding the

administrative procedure for EPA action

on NOX exemption requests. The

absence of specific guidelines by

Congress leaves EPA with discretion to

establish reasonable procedures,

consistent with the requirements of the

Administrative Procedure Act (APA).

Although a section 182(f) petition

may determine the applicability of SIP

requirements pertaining to NOX

emission reductions and controls, this

petition itself is not a SIP, nor must it

be a revision to a SIP. Therefore, a

petition is not required to undergo a

public hearing, nor must a petition be

submitted by a Governor of a State or

his designee. This submission was made

by the Maine Commissioner of the

Department of Environmental

Protection. A public hearing was not

held on the September 7, 1995 NOX

exemption request.

X. Final Action

The EPA is approving the exemption

request for the Northern Maine area

from the Section 182(f) NOX

requirements based upon the evidence

provided by the State and the State’s

compliance with the requirements

outlined in the applicable EPA

guidance. This action exempts the

Oxford, Franklin, Somerset, Piscataquis,

Penobscot, Washington, Aroostook,

Hancock and Waldo counties from the

requirements to implement NOX control

measures for existing stationary sources

(other than those controls specified

herein), nonattainment area NSR for

new sources and modifications that are

major for NOX, the NOX-related general

conformity provisions, and the NOXrelated transportation conformity

provisions in 40 CFR 51.436–51.440 and

40 CFR 93.122–93.124 (‘‘build/no-build

test’’). If EPA determines based on

future air quality analyses that NOX

controls in these areas are necessary,

rulemaking may be initiated which may

mean that this NOX exemption no

longer applies. As stated before, the

State of Maine requested only a limited

exemption from NOX control

requirements for existing stationary

sources. EPA is approving this level of

control as strengthening the existing

SIP.

XI. Procedural Background

Nothing in this action shall be

construed as permitting or allowing or

establishing a precedent for any future

request for a revision to any state

implementation plan. Each request for

revision to the state implementation

plan shall be considered separately in

light of specific technical, economic,

and environmental factors and in

relation to relevant statutory and

regulatory requirements.

XII. Regulatory Process

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities (5 U.S.C. 603

and 604). Alternatively, EPA may certify

that the rule will not have a significant

impact on a substantial number of small

entities. Small entities include small

businesses, small not-for-profit

enterprises, and government entities

with jurisdiction over populations of

less than 50,000. Today’s exemption

does not create any new requirements,

but allows suspension of the indicated

requirements for the life of the

exemption. Therefore, because the

approval does not impose any new

requirements, I certify that it does not

have a significant impact on any small

entities affected. This action also

approves certain controls already in

effect at the State level, and, as such,

imposes no additional regulatory

burden on these facilities.

Under Section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by February 26,

1996. Filing a petition for

reconsideration by the Administrator of

this final rule does not affect the finality

of this rule for the purposes of judicial

review nor does it extend the time

within which a petition for judicial

review may be filed, and shall not

postpone the effectiveness of such rule

or action. This action may not be

challenged later in proceedings to

enforce its requirements. (See Section

307(b)(2)).

Under Sections 202, 203, and 205 of

the Unfunded Mandates Reform Act of

1995 (‘‘Unfunded Mandates Act’’),

signed into law on March 22, 1995, EPA

must undertake various actions in

association with proposed or final rules

that include a Federal mandate that may

result in estimated costs of $100 million

or more to the private sector, or to State,

local, or tribal governments in the

aggregate.
Federal Register / Vol. 60, No. 247 / Tuesday, December 26, 1995 / Rules and Regulations 66755

Through submission of this NOX

waiver request and NOX control

revisions to its state implementation

plan, the State has elected to adopt the

program provided for under Section 110

of the Clean Air Act. These rules may

bind State, local and tribal governments

to perform certain actions and also

require the private sector to perform

certain duties. To the extent that the

rules being approved by this action will

impose new requirements, such sources

are already subject to these regulations

under State law. Accordingly, no

additional costs to State, local, or tribal

governments, or to the private sector,

result from this action. EPA has also

determined that this final action does

not include a mandate that may result

in estimated costs of $100 million or

more to State, local, or tribal

governments in the aggregate or to the

private sector.

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Nitrogen oxides,

Ozone, Volatile organic compounds,

Intergovernmental relations, Reporting

and recordkeeping requirements.

Authority: 42 U.S.C. 4201–7671q.

Note: Incorporation by reference of the

State Implementation Plan for the State of

Maine was approved by the Director of the

Federal Register on July 1, 1982.

Dated: December 1, 1995.

Carol M. Browner,

Administrator.

Part 52 of chapter I, title 40 of the

Code of Federal Regulations is amended

as follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

Subpart U—Maine

2. Section 52.1020 is amended by

adding paragraph (c)(41) to read as

follows:

§ 52.1020 Identification of plan.

* * * * *

(c) * * *

(41) Revisions to the State

Implementation Plan submitted by the

Maine Department of Environmental

Protection on August 5, 1994 related to

NOX controls in Oxford, Franklin,

Somerset, Piscataquis, Penobscot,

Washington, Aroostook, Hancock and

Waldo Counties.

(i) Incorporation by reference.

(A) A Letter from the Maine

Department of Environmental Protection

dated August 5, 1994 submitting a

revision to the Maine State

Implementation Plan.

(B) Chapter 138 of the Maine DEP’s

regulations, ‘‘Reasonably Available

Control Technology for Facilities that

Emit Nitrogen Oxides’’ for sources only

in Oxford, Franklin, Somerset,

Piscataquis, Penobscot, Washington,

Aroostook, Hancock and Waldo

Counties (excepted portions include

Sections 1.A.1. and 3.B.). This rule was

effective August 3, 1994.

3. In § 52.1031, Table 52.1031 is

amended by adding state citation 138 in

numerical order to read as follows:

§ 52.1031 EPA-approved Maine

regulations.

* * * * *

TABLE 52.1031.—EPA-APPROVED RULES AND REGULATIONS

State

citationTitle/subject Date adopted by State

Date approved by

EPA

FEDERAL

REGISTER citation52.1020

* * * * * * *

138 ... Reasonably Available Control Technology For Facilities That Emit Nitrogen Oxides.8/3/94 December 26, 1995 60 FR (c)(41) Affects sources only in Oxford, Franklin,

Somerset, Piscataquis, Penobscot,

Washington, Aroostook, Hancock and

Waldo Counties (excepted portions of

rule include Sections 1.A.1. and 3.B.).

4. Section 52.1023 is amended by

adding paragraph (c) to read as follows:

§ 52.1023 Control strategy: Ozone.

* * * * *

(c) Approval. EPA is approving an

exemption request submitted by the

Maine Department of Environmental

Protection on September 7, 1995, for the

Northern Maine area from the NOX

requirements contained in Section

182(f) of the Clean Air Act. This

approval exempts Oxford, Franklin,

Somerset, Piscataquis, Penobscot,

Washington, Aroostook, Hancock and

Waldo Counties from the requirements

to implement controls beyond those

approved in § 52.1020(c)(41) for major

sources of nitrogen oxides (NOX),

nonattainment area new source review

(NSR) for new sources and

modifications that are major for NOX,

and the applicable NOX-related

requirements of the general and

transportation conformity provisions.

[FR Doc. 95–31034 Filed 12–22–95; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 677

[Docket No. 950822211–5291–02; I.D.

080395A]

RIN 0648–AD80

North Pacific Fisheries Research Plan;

Amendment 1

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule; technical

amendments.

SUMMARY: NMFS issues a final rule to

implement Amendment 1 to the North

Pacific Fisheries Research Plan

(Research Plan). Regulations

implementing Amendment 1 delay full

implementation of the Research Plan

until 1997 and establish 1996 observer

coverage requirements for the Research

Plan fisheries. This delay is necessary to

provide the North Pacific Fishery

Management Council (Council)

additional time to address certain issues

presented by implementation of the

Research Plan. Two technical

amendments also are implemented to

clarify provisions for refunding excess

payments of 1995 Research Plan fee

assessments and to clarify 1996 observer

coverage requirements for groundfish

vessels.

EFFECTIVE DATE: January 1, 1996.