[Federal Register Volume 60, Number 247 (Tuesday, December 26, 1995)]
[Rules and Regulations]
[Pages 66748-66755]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31034]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[ME26-1-7263a; FRL-5345-9]


Approval and Promulgation of Implementation Plans; Maine; 
NO<INF>X Exemption Request for Northern Maine and NO<INF>X Control 
Approval

AGENCY: United States Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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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 
(NO<INF>X) and to provide for nonattainment area new source review 
(NSR) for new sources and modifications that are major for NO<INF>X. 
This exemption request, submitted by the State of Maine on September 7, 
1995, is based on a demonstration that NO<INF>X 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 NO<INF>X 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 

[[Page 66749]]
area in the OTR. Thus, as provided for in section 182(f)(2), additional 
NO<INF>X 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 
NO<INF>X exemption with its approval of NO<INF>X controls for existing 
sources in Northern Maine that were submitted to EPA on August 5, 1994 
for purposes of meeting the Act's NO<INF>X RACT requirements. 
Consequently, this action approves a full exemption from nonattainment 
NSR requirements for NO<INF>X, but only a limited exemption from 
NO<INF>X 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 NO<INF>X 
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 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 NO<INF>X from 
such areas would not contribute to net ozone benefits in the OTR. In 
addition, implementation of NO<INF>X controls may be limited if EPA 
determines it is necessary to avoid achieving excess reductions. Also, 
NO<INF>X-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 NO<INF>X (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 NO<INF>X requirements under the Clean Air Act may be 
limited if it is shown that additional NO<INF>X 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 NO<INF>X 
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 NO<INF>X 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 NO<INF>X-related general conformity 
provisions, the NO<INF>X-related transportation conformity provisions 
in 40 CFR 51.436-51.440 and 40 CFR 93.122-93.124 (``build/ no-build 
test''), NO<INF>X RACT, and nonattainment area NSR for new sources and 
modifications that are major for NO<INF>X. Additionally, NO<INF>X 
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 NO<INF>X 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 NO<INF>X 
emissions which would result from the transportation system if the 
proposed transportation plan and program were implemented are within 
the total allowable level of NO<INF>X 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. 

[[Page 66750]]

    The transportation conformity rules provide for an exemption from 
these so called ``build/no build'' requirements with respect to 
NO<INF>X if the Administrator determines that additional reductions of 
NO<INF>X would not contribute to attainment of the ozone NAAQS. 
However, all other NO<INF>X provisions in the transportation conformity 
rule would apply, including the requirement for consistency with the 
NO<INF>X 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 NO<INF>X for these areas, 
but once any maintenance plan is approved by EPA, consistency with the 
NO<INF>X 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 NO<INF>X 
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 (NO<INF>X) 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 (NO<INF>X) 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 NO<INF>X emissions from these 9 counties, that 
is, NO<INF>X 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 NO<INF>X requirements for this 9 county area, it has 
requested a limited exemption from NO<INF>X 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 NO<INF>X controls for existing stationary 
sources in the Northern Maine area previously submitted to EPA on 
August 5, 1994. In approving this NO<INF>X exemption request, EPA 
considered the impact of the limited exemption from NO<INF>X 
requirements for existing sources. EPA is approving this action 
because, under section 182(f)(2), EPA has determined that additional 
NO<INF>X 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 

[[Page 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 NO<INF>X 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 HY-SPLIT 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 NO<INF>X 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 NO<INF>X 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 back-trajectory.'' 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 
NO<INF>X 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 NO<INF>X 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 NO<INF>X RACT 
for facilities located in the non-moderate areas of the State (these 9 
counties). In its NO<INF>X 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 NO<INF>X 
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 NO<INF>X 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 NO<INF>X 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 NO<INF>X Supplement to the General 
Preamble for implementing nonattainment requirements, EPA noted that 
states remain free to reduce NO<INF>X emissions for a variety of 
reasons. 57 Fed. Reg. 55621, 55627 (Nov. 25, 1992). As long as EPA 
determines that these NO<INF>X reductions are not counterproductive or 
will not delay ozone attainment, EPA will approve them into the SIP. 
There is no evidence that the NO<INF>X reductions from Chapter 138 are 
counterproductive, and the conclusion of the demonstration supporting 
the exemption request is that additional NO<INF>X 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. 

[[Page 66752]]

    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 
NO<INF>X 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 
NO<INF>X. This provision states that lowest achievable emission rate 
(LAER) and offsets for NO<INF>X 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 NO<INF>X 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 NO<INF>X 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 NO<INF>X 
exemption no longer applies would mean that the NO<INF>X NSR and the 
NO<INF>X-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 NO<INF>X (see 60 FR 44795). The requirement for NO<INF>X 
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 NO<INF>X 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 NO<INF>X exemptions. The three environmental 
groups who submitted the generic comments requested that these comments 
be included in each EPA rulemaking action on NO<INF>X 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 NO<INF>X exemptions are 
provided for in two separate parts of the Act, in sections 182(b)(1) 
and 182(f). Because the NO<INF>X 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 NO<INF>X 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 NO<INF>X requirements, exemptions from the NO<INF>X 
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 NO<INF>X 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 NO<INF>X 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 NO<INF>X exemption 
requests. The language in section 182(f)(1), which indicates that the 
EPA should act on NO<INF>X 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 NO<INF>X 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 NO<INF>X 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 
NO<INF>X 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 NO<INF>X 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 NO<INF>X exemption 
requests, in some cases, prior to submittal of attainment or 
maintenance demonstrations. It is 

[[Page 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 NO<INF>X 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 NO<INF>X build/no-
build 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 NO<INF>X 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 NO<INF>X 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 NO<INF>X 
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 NO<INF>X 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 NO<INF>X requirements should not apply. There is no 
substantive difference between the technical analysis required to make 
an assessment of NO<INF>X impacts on attainment in a particular area 
whether undertaken with respect to mobile source or stationary source 
NO<INF>X emissions. Moreover, where EPA has determined that NO<INF>X 
reductions will not benefit attainment or would be counterproductive in 
an area, the EPA believes it would be unreasonable to insist on 
NO<INF>X 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 NO<INF>X 
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 NO<INF>X 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 NO<INF>X 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 NO<INF>X emissions allowed under the 
transportation conformity rules and, similarly, the maximum allowable 
amounts of any such NO<INF>X 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 NO<INF>X, but want EPA, in actions on 
NO<INF>X exemptions, to explicitly affirm this obligation and to also 
avoid granting waivers until a budget controlling future NO<INF>X 
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 
NO<INF>X 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 NO<INF>X 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 NO<INF>X 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 NO<INF>X reductions would generally not be beneficial 
towards attainment of the ozone standard. In section 182(f)(1), 
Congress explicitly conditioned action on NO<INF>X exemptions on the 
results of an ozone precursor study required under section 185B of the 
Act. Because of the possibility that reducing NO<INF>X 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 
NO<INF>X reductions where such would not be beneficial or would be 
counterproductive. In describing these various ozone 

[[Page 66754]]
provisions, including section 182(f), the House Conference Committee 
Report states in the pertinent part: ``[T]he Committee included a 
separate NO<INF>X/VOC study provision in section [185B] to serve as the 
basis for the various findings contemplated in the NO<INF>X provisions. 
The Committee does not intend NO<INF>X reduction for reduction's sake, 
but rather as a measure scaled to the value of NO<INF>X 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 NO<INF>X 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 NO<INF>X 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 
NO<INF>X exemption requests must await ``conclusive evidence,'' as the 
commenters argue, there is also nothing in the Act to prevent EPA from 
revisiting an approved NO<INF>X 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 
NO<INF>X 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 NO<INF>X reductions from the sources concerned;
    (2) In nonattainment areas not within an ozone transport region, 
additional NO<INF>X reductions would not contribute to ozone attainment 
in the area; or
    (3) In nonattainment areas within an ozone transport region, 
additional NO<INF>X 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 NO<INF>X 
exemption.
    Only the first test listed above is based on a showing that 
NO<INF>X reductions are ``counter productive.'' If one of the tests is 
met (even if another test is failed or not applied), the section 182(f) 
NO<INF>X requirements would not apply or, under the excess reductions 
provision, a portion of these requirements would not apply.

Processing NO<INF>X Exemptions

    As stated above, section 182(f) contains very few details regarding 
the administrative procedure for EPA action on NO<INF>X 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 NO<INF>X 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 NO<INF>X exemption request.

X. Final Action

    The EPA is approving the exemption request for the Northern Maine 
area from the Section 182(f) NO<INF>X 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 NO<INF>X control measures for existing stationary sources 
(other than those controls specified herein), nonattainment area NSR 
for new sources and modifications that are major for NO<INF>X, the 
NO<INF>X-related general conformity provisions, and the NO<INF>X-
related 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 NO<INF>X controls in these 
areas are necessary, rulemaking may be initiated which may mean that 
this NO<INF>X exemption no longer applies. As stated before, the State 
of Maine requested only a limited exemption from NO<INF>X 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.

[[Page 66755]]

    Through submission of this NO<INF>X waiver request and NO<INF>X 
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:


Sec. 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 NO<INF>X 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 Sec. 52.1031, Table 52.1031 is amended by adding state 
citation 138 in numerical order to read as follows:


Sec. 52.1031   EPA-approved Maine regulations.

* * * * *

                                                   Table 52.1031.--EPA-Approved Rules and Regulations                                                   
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                          Date                                                                                          
         State citation              Title/subject     adopted by   Date approved by     Federal Register         52.1020                               
                                                         State             EPA               citation                                                   
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                        
                *                   *                   *                   *                   *                   *                   *               
138.............................  Reasonably               8/3/94  December 26, 1995.  60 FR                (c)(41)              Affects sources only in
                                   Available Control                                                                              Oxford, Franklin,     
                                   Technology For                                                                                 Somerset, Piscataquis,
                                   Facilities That                                                                                Penobscot, Washington,
                                   Emit Nitrogen                                                                                  Aroostook, Hancock and
                                   Oxides.                                                                                        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:


Sec. 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 NO<INF>X 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 Sec. 52.1020(c)(41) for major sources of 
nitrogen oxides (NO<INF>X), nonattainment area new source review (NSR) 
for new sources and modifications that are major for NO<INF>X, and the 
applicable NO<INF>X-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