[Federal Register Volume 79, Number 145 (Tuesday, July 29, 2014)]
[Rules and Regulations]
[Pages 43945-43956]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-17583]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R01-OAR-2012-0895; A-1-FRL-9913-56-OAR]
Approval and Promulgation of Air Quality Implementation Plans;
Maine; Nitrogen Oxides Exemption Request
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving a request from Maine for an exemption from
the requirements for the control of nitrogen oxides (NOX)
emissions contained in section 182(f) of the Clean Air Act (CAA or Act)
in relation to the 2008 8-hour ozone national ambient air quality
standards (standards or NAAQS). Maine's request, dated October 13,
2012, is based on a technical demonstration submitted to EPA by Maine's
Department of Environmental Protection (ME DEP) showing that
NOX emissions in Maine are not having a meaningful adverse
impact on the ability of any
[[Page 43946]]
nonattainment areas located in the Ozone Transport Region (OTR) to
attain the ozone standards during times when elevated ozone levels are
monitored in those areas. Specifically, Maine analyzed the nearest of
these areas (i.e., the nonattainment areas in Massachusetts and
Connecticut). Based on EPA's review of this technical demonstration,
and other relevant information, we conclude that any additional
reductions in NOX emissions in the State of Maine that would
be required under the 2008 8-hour ozone standards, and which would be
beyond what Maine's State Implementation Plan (SIP) regulations already
provide for, would not produce net ozone air quality benefits in the
OTR. Thus, EPA has determined that those emissions reductions may be
exempted under the Act.
DATES: This rule is effective on August 28, 2014.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R01-OAR-2012-0895. All documents in the docket
are listed on the www.regulations.gov Web site. Although listed in the
index, some information is not publicly available, i.e., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically through
www.regulations.gov or in hard copy at the Office of Ecosystem
Protection, U.S. Environmental Protection Agency, EPA New England
Regional Office, One Congress Street, Suite 1100, Boston, MA. EPA
requests that if at all possible, you contact the contact listed in the
FOR FURTHER INFORMATION CONTACT section immediately following this
paragraph to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m.,
excluding legal holidays. Copies of the documents relevant to this
action are also available for public inspection during normal business
hours, by appointment at the State Air Agency: Bureau of Air Quality
Control, Department of Environmental Protection, First Floor of the
Tyson Building, Augusta Mental Health Institute Complex, Augusta, ME
04333-0017.
FOR FURTHER INFORMATION CONTACT: Richard Burkhart, Air Quality Planning
Unit, U.S. Environmental Protection Agency, EPA New England Regional
Office, 5 Post Office Square, Suite 100, Boston, MA 02109-3912,
telephone number (617) 918-1664, fax number (617) 918-0664, email
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
The information presented in this action is organized as follows:
I. Background
II. What action is EPA taking?
III. Response to Comments
IV. Final Action
V. Statutory and Executive Order Reviews
I. Background
On August 5, 2013 (78 FR 47253), EPA published a Notice of Proposed
Rulemaking (NPR) for the State of Maine. In the NPR, EPA proposed to
approve Maine's request for a state-wide exemption from the CAA section
182(f) NOX control requirements. The ME DEP submitted the
request to EPA on October 13, 2012.
In the NPR, EPA also proposed approval of a CAA section 176A
request from Maine to restructure the requirements of the OTR for all
of Maine and proposed to amend the Maine SIP accordingly. The ME DEP
submitted its restructuring request on February 11, 2013, and
supplemented its submittal on November 18, 2013. Specifically, Maine
requested that EPA approve a ``limited opt-out'' or ``restructuring''
of the Act's OTR requirements pertaining to nonattainment New Source
Review (NSR) permitting requirements applicable to major new and
modified stationary sources of volatile organic compounds (VOC). EPA is
not taking final action on the proposed approval of Maine's CAA section
176A request or the related proposed SIP changes at this time.
II. What Action is EPA taking?
EPA is approving the State of Maine's request for an exemption from
the NOX requirements contained in Section 182(f) of the CAA
for the entire State of Maine. CAA section 182(f) makes certain
requirements that apply to major sources of volatile organic compounds
(VOC) also applicable to major stationary sources of NOX
emissions. This section also gives the Administrator authority to
exempt NOX emission sources from those requirements. Through
this action the Administrator is granting such an exemption with
respect to the 2008 ozone NAAQS for the State of Maine. The specific
requirements that would otherwise apply are (1) the requirement to
implement pollution controls meeting reasonably available control
technology (RACT) for emissions of NOX; and (2) the
nonattainment area new source review (NSR) permitting requirements for
major new and modified sources as they apply to emissions of
NOX. EPA is approving this request pursuant to CAA section
182(f)(1)(B), which provides the applicable test for granting such
exemptions for nonattainment areas in the Ozone Transport Region (OTR)
(as well as for attainment areas in the OTR).
When evaluating how Maine's request meets the ``net ozone air
quality benefit'' test in section 182(f)(1)(B) of the CAA, EPA
considered a variety of factors: (1) Maine's unique position at the
northern extremity of the OTR and the phenomenon that on high ozone
days \1\ in nearby nonattainment areas the prevailing winds typically
flow from the southwest towards Maine; (2) our 2005 NOX
exemption guidance \2\ which indicates that the ``net ozone air quality
benefit'' test may be applied in attainment areas within the OTR; (3)
Maine's back-trajectory technical analysis and EPA's photochemical grid
modeling; (4) the language of section 182(f) of the CAA and important
related CAA provisions; and (5) information provided by the public, and
the State of Maine, in response to our notice of proposed rulemaking.
These factors, which are discussed in more detail in the response to
comments below, show that Maine is downwind of nearby areas when they
experience ozone concentrations above the standard, none of the back-
trajectories associated with ozone concentration days above the
standard for nearby nonattainment areas pass through Maine, and
modeling data indicate that Maine's impact on nonattainment areas in
the OTR is so small as to be not meaningful. For all of these reasons,
EPA believes that NOX emission reductions required under
section 182(f) absent a NOX exemption would not produce any
meaningful ozone benefits in OTR areas that are not attaining the 2008
ozone standard; we therefore conclude that Maine's technical
demonstration and the other information we evaluated satisfy the
requirements of the ``net ozone air quality benefits'' test. If EPA
subsequently determines, based on future air quality analyses, that
such NOX emissions controls in Maine are necessary to meet
the requirements of
[[Page 43947]]
the CAA, EPA may initiate rulemaking to revoke the NOX
exemption being approved in relation to the 2008 ozone NAAQS.
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\1\ The term ``high ozone days'' refers to days when the ozone
standard is exceeded. The 2008 ozone NAAQS is based on a three-year
average of the fourth-highest 8-hour average yearly concentration.
When an ozone monitor ``exceeds'' the level of the NAAQS (0.075 ppm
or 75 ppb) it is commonly referred to as an exceedance day.
\2\ ``Guidance on Limiting Nitrogen Oxides Requirements Related
to 8-Hour Ozone Implementation,'' January 2005.
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III. Response to Comments
EPA received both supportive and adverse comments on its August 5,
2013 NPR. The comments received that relate to Maine's CAA section
182(f) NOX exemption request, and EPA's responses to those
specific comments, are set forth below. As noted above, EPA is not
taking action on Maine's OTR restructuring request relating to
nonattainment NSR applicable to VOC emissions and this notice,
therefore, does not address public comments received on that aspect of
EPA's August 5, 2013 NPR. Any final action on EPA's proposed approval
of Maine's OTR restructuring request for VOC NSR will be taken
separately. Public comments received on our August 5, 2013 NPR that
pertained to Maine's OTR VOC NSR restructuring request will be
addressed at that time.
Comment #1: Several commenters mentioned that Maine's air quality
data is near the existing ozone NAAQS. One or more commenters stated
that preliminary 2013 ozone data show that coastal Maine's design value
is 75 parts per billion (ppb) [0.075 parts per million (ppm)] and
within a small margin of failing to meet the NAAQS. Several commenters
directly stated or implied that they expect ozone levels in Maine will
increase if EPA approves Maine's NOX exemption request.
Response #1: The ME DEP runs an extensive network of ozone monitors
throughout the State of Maine. In addition, there are three ozone
monitors run by tribes in Maine and two ozone monitors at CASTNET
(Clean Air Status and Trends Network) sites. All ozone data for
monitoring sites in Maine meet the 2008 ozone NAAQS. The design values
\3\ for ME DEP's ozone monitors, based on 2010-2012 quality-assured,
certified ozone data, are shown in Table 1 below (Maine's ozone data
are available in the EPA Air Quality System (AQS) air quality database
and in the EPA airdata database at http://www.epa.gov/airdata/ad_rep_mon.html). Final 2013 ozone data and preliminary 2011-2013 design
values are also shown. The 2013 data are also in AQS, and have been
certified.
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\3\ The 2008 ozone NAAQS is based on a three-year average of the
fourth-highest 8-hour average yearly concentration. This value is
called the design value. If the design value is less than or equal
to 0.075 ppm (the level of the 2008 ozone NAAQS) the area is meeting
the 2008 ozone NAAQS. An ozone monitor can ``exceed'' the level of
the NAAQS (0.075 ppm or 75 ppb) on average three times a year and
still ``meet'' the 2008 ozone NAAQS. Any one monitor with a design
value above the level of the NAAQS is not meeting the NAAQS.
Table 1--Maine Ozone Data 4th High Values and Design Values (DV)
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4th 4th 4th 4th
Site location County Monitor type AIRS ID High High High High 2010 to 2011 to
2010 2011 2012 2013 2012 DV 2013 DV
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Bar Harbor--McFarland Hill.......... Hancock............... NCore.................. 230090103 0.070 0.066 0.060 0.069 0.065 0.065
Bar Harbor--Cadillac Mtn............ Hancock............... SLAMS.................. 230090102 0.076 0.074 0.066 0.068 0.072 0.069
Bowdoinham.......................... Sagadahoc............. SPMS................... 230230006 0.061 0.061 0.062 0.061 0.061 0.061
Cape Elizabeth...................... Cumberland............ SLAMS.................. 230052003 0.072 0.070 0.066 0.072 0.069 0.069
Durham.............................. Androscoggin.......... SPMS................... 230010014 0.058 0.063 0.061 0.059 0.060 0.061
Gardiner............................ Kennebec.............. SLAMS.................. 230112005 0.059 0.063 0.064 0.065 0.062 0.064
Holden.............................. Penobscot............. SLAMS.................. 230194008 0.059 0.055 0.058 0.064 0.057 0.059
Jonesport........................... Washington............ SPMS................... 230290019 0.061 0.057 0.057 0.062 0.058 0.058
Kennebunkport....................... York.................. SLAM................... 230312002 0.072 0.073 0.077 0.076 0.074 0.075
North Lovell........................ Oxford................ SPMS................... 230173001 0.054 0.054 0.056 0.052 0.054 0.054
Port Clyde.......................... Knox.................. SLAM................... 230130004 0.070 0.068 0.062 0.076 0.066 0.068
Portland............................ Cumberland............ SPM/NR................. 230050029 0.060 0.060 0.065 0.061 0.061 0.062
Shapleigh........................... York.................. SPMS................... 230310040 0.066 0.064 0.065 0.064 0.065 0.064
West Buxton......................... York.................. SPMS................... 230310037 0.058 0.059 0.065 0.063 0.060 0.062
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All data in parts per million (ppm) ozone--2013 ozone design values are preliminary.
NCore: National Core.
SLAMS: State and Local Air Monitoring Station.
SPMS: Special Purpose Monitoring Station.
SPM/NR: Special Purpose Monitor/Non-Regulatory.
As has always been the case in Maine, the ozone monitors with the
highest design values are located on the coast (i.e., Kennebunkport,
Cape Elizabeth, Portland, Port Clyde, Bar Harbor and Jonesport).
ME DEP received similar comments, during its state public comment
period, asserting that if a NOX exemption is granted by EPA
the effect would be to exacerbate current air quality in Maine; to
address these comments, ME DEP prepared a technical analysis
supplementing its original analysis, and submitted that additional
analysis to EPA as part of its November 18, 2013 submittal
supplementing its original submittal. ME DEP's analysis tracks the
origin of the ozone precursor pollutants (NOX and VOC) on
days when the 2008 NAAQS is exceeded. Maine is at the end of the ozone
``pipeline'' in the OTR, and thus receives ozone transported from
points to the south, such as from the Greater Boston area, the large
cities along coastal Connecticut and from the New York City area. These
pollutants are transported into Maine on southerly and south-westerly
winds, the only wind direction that results in ozone levels in Maine
that exceed the 2008 ozone NAAQS.
Furthermore, Maine did not request to discontinue or remove from
its SIP any existing NOX pollution controls. That is, all
existing sources still will be required to comply with currently
applicable NOX pollution control requirements to which they
were subject prior to EPA's action approving Maine's NOX
exemption request. Specifically, the NOX control
requirements contained in Chapters 138, 145 and 148 of ME DEP
Regulations (``Reasonably Available Control Technology For Facilities
That Emit Nitrogen Oxides (NOX-RACT),'' ``NOX
Control Program,'' and ``Emissions from Smaller-Scale Electric
Generating Facilities'') will remain in Maine's SIP. And for major new
and modified stationary sources of NOX,
[[Page 43948]]
Maine's Prevention of Significant Deterioration (PSD) permitting
requirements will now apply in lieu of the nonattainment NSR permitting
requirements. Outside of the OTR, PSD permitting requirements typically
apply in areas attaining the NAAQS. All of Maine is now attaining the
ozone NAAQS, and ME DEP's technical demonstration supporting its
NOX exemption request shows that Maine's emissions are not
having a meaningful adverse impact on the ability of any nonattainment
areas in the OTR to attain the ozone NAAQS. The basis of Maine's
conclusion was a detailed analysis of all of the ozone exceedances in
the nearest of these areas (i.e., the nonattainment areas in
Massachusetts and Connecticut).
Moreover, it is important to note that, as explained in EPA's
August 5, 2013 NPR, EPA's approval of this NOX exemption is
not the first time that EPA has granted a NOX exemption
under CAA section 182(f) to Maine. On December 26, 1995 (60 FR 66748),
EPA approved the State of Maine's section 182(f) NOX
exemption request for counties in northern and downeast Maine which
were attaining the 1-hour ozone NAAQS applicable at that time
(specifically, Aroostook, Franklin, Oxford, Penobscot, Piscataquis,
Somerset, Washington, Hancock and Waldo Counties). In addition, on
February 3, 2006 (71 FR 5791), EPA approved a section 182(f)
NOX exemption request for a similar area in Maine
(specifically, Aroostook, Franklin, Oxford, Penobscot, Piscataquis,
Somerset, Washington, and portions of Hancock and Waldo Counties) in
relation to the 1997 8-hour ozone NAAQS. Thus, since December 1995 all
of the major stationary sources of NOX in these areas have
not been subject to the nonattainment NSR permitting requirements that
are applicable throughout the OTR. Sources in these areas have
throughout that period of time been covered by Maine's PSD regulations,
and will continue to be so covered under EPA's approval of this
NOX exemption request.
Comment #2: One commenter requested that EPA and Maine examine
ozone data from Appledore Island and other ``research ozone monitors.''
In addition, the commenter requested that Maine examine ozone data at
the now discontinued Small Point ozone monitor and discontinued ozone
monitor in Pownall, Maine. Another commenter noted that ``[g]iven the
nature and limitations of monitoring, it is fair to say that other
locations are likely to be above the current 75 ppb [0.075 ppm]
standard but simply haven't been identified.''
Response #2: As stated in the response to comment 1 above,
there is an extensive ozone monitoring network operated in the State of
Maine by a number of entities. For a variety of reasons, ME DEP runs
more ozone monitors than minimally required under EPA regulations at 40
CFR Part 58, Appendix D. This is especially true in southern Maine and
along the entire coastline, where Maine records its highest levels of
ozone. For example, EPA regulations require the State of Maine to run a
minimum of two ozone monitors in the Portland-South Portland, Maine
Metropolitan Statistical Area (MSA), which comprises the counties of
Cumberland, Sagadahoc and York. ME DEP currently runs six ozone
monitors in this MSA, with a mix of monitors along the coast and some
monitors located more inland. As stated earlier, all current Maine
ozone sites in the AQS data base (see Table 1, above) are monitoring
air quality that meets the 2008 ozone NAAQS. In addition, all New
Hampshire ozone sites in the AQS data base also monitor air quality
that meets the 2008 ozone NAAQS. In fact, all of Maine and all of New
Hampshire are designated as attainment/unclassifiable for the 2008
ozone NAAQS (see 40 CFR 81.320 and 81.330), the best/cleanest
classification.
With regard to ozone monitoring data at Appledore Island off the
coast of New Hampshire, the University of New Hampshire did operate a
research data ozone monitor on this island for a number of years. The
data is available at: www.eos.unh.edu/observatories/data.shtml. The
Appledore monitor was shut down in March 2012, so the latest three
years available to analyze from that monitor for the ozone season are
the years 2009-2011. An analysis of that data by the ME DEP shows that
the 4th highest daily maximum concentrations for each year were 0.075
ppm, 0.068 ppm and 0.070 ppm, respectively, resulting in a design value
of 0.071 ppm, which is below the 2008 ozone NAAQS.
The Pownal, Maine ozone monitoring site was in operation only
during the 1980 through 1983 ozone seasons. Pownal is an inland ozone
monitoring site and, as is the case for all inland ozone monitoring
sites, historically had lower maximum ozone values than nearby coastal
sites. An analysis of historic ozone data by the ME DEP shows the 4th
highest daily maximum 8-hour ozone concentration in 1983 at the Pownal
site was on the order of 0.02 ppm ozone lower (based on the 4th highest
daily maximum 8-hour concentration) than the coastal sites in
Kennebunkport and Cape Elizabeth, respectively. Even though these data
are quite old, they confirm the observation that ozone concentrations
at inland sites in Maine are much lower than at coastal sites during
periods of high ozone. During ozone episodes in Maine, ozone plumes
which originate from the large upwind urban areas of Boston and
Providence are advected over the Gulf of Maine (the North Atlantic) by
the wind, and then inland into coastal Maine. Once ashore, the ozone
concentrations are quickly reduced, most likely by two methods. The
first reduction method is the increase in mixing height over the land,
as opposed to over the cold North Atlantic. The increase in mixing
height, both because of the roughness length \4\ of the land as opposed
to the ocean (i.e., the land has hills, trees and buildings which cause
a resistance for the winds; the relatively smooth ocean does not, and
the increase in resistance, roughness, causes the mixing height to
increase), and the warmer land being able to support a higher boundary
layer mixing height, help to dilute ozone levels and thus lower ozone
concentrations. In addition, ozone scavenging (the process whereby
ozone is converted into oxygen, a non-pollutant) by the land-cover
vegetation of trees, shrubs and grasslands helps to lower ozone
concentrations. The result of these processes is lower ozone
concentrations inland in Maine and higher concentrations along the
coast. Since ozone in Maine is highest along the coast, Maine has put
many of its ozone monitors in coastal locations.
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\4\ ``Roughness length'' is a measure of surface roughness,
oceans are smooth with a low roughness length, while forests are
rough with a high roughness length.
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The Small Point monitoring site in Phippsburg, Maine was in
operation only during the 1994-2000 ozone seasons. This site is in
Sagadahoc County, which is part of the Portland-South Portland, Maine
Metropolitan Statistical Area. The Small Point monitor was at a coastal
location. An analysis by the ME DEP of the historic ozone data during
that time period shows that there was only a single year, 1996, when
the Small Point (Phippsburg) site had the highest 4th high maximum
daily 8-hour ozone concentration among coastal monitoring sites in
Maine. The highest site during other years was at the Kennebunkport
site in 1994 and 1995, at the Cape Elizabeth site in 1997, and at the
Cadillac Mountain Summit site in 1998, 1999 and 2000. Depending on the
transport pattern at a particular time,
[[Page 43949]]
the peak ozone concentration can occur anywhere along Maine's southwest
and mid-coast regions, but the southern sites are most likely to show
the highest concentrations.
As stated earlier, ME DEP runs more ozone monitors in the Portland-
South Portland, Maine MSA than is required by EPA's minimum ozone
monitoring requirements at 40 CFR Part 58, Appendix D. Maine's entire
ozone monitoring network is described in its 2014 Annual Air Monitoring
Plan. (See www.maine.gov/dep/air/monitoring/docs/Air%20Monitoring%20Plan.pdf.) This annual air monitoring plan is
required to be submitted to EPA annually for review and approval after
being subjected to a 30-day public comment period. Maine's most recent
plan was posted for public comment on May 31, 2013, and was then
submitted to EPA for review on July 1, 2013. EPA approved Maine's plan
as a final action on August 6, 2013 and does not believe there exist
any gaps in ozone monitoring coverage along Maine's coast.
Comment #3: Several commenters discuss Maine's ozone air quality
and refer to it as poor and/or unhealthy. They cite high asthma rates
and other lung ailments. For example, one commenter states: ``[i]t is a
troubling fact that Mainers continue to suffer from smog pollution from
in-state and cross-border pollutants, especially in the summer. Maine's
Department of Health and Human Services (DHHS) reports that Maine has
some of the highest rates of asthma in the country, with approximately
10% of Maine adults and 10.7% of children suffering from asthma.
According to the American Lung Association's 2013 ``State of the Air''
report, hundreds of thousands of Maine residents suffer from smog
pollution, including more than 23,000 children and 127,000 adults with
asthma; nearly 84,000 with COPD; 377,000 with cardiovascular disease;
and nearly 103,000 with diabetes. In addition, more than 269,000 young
people under age 18 and 216,000 seniors in Maine are especially
vulnerable to harmful health impacts of smog pollution. Given the on-
going health threat of smog pollution to Maine families, we believe
that it would be a serious mistake to weaken the state's ability to
control sources of smog pollutants.''
Another commenter states that one half of Maine's counties have
unhealthy air quality. Several commenters also state that Maine's ozone
air quality is getting worse, not better.
Response #3: The primary ozone NAAQS (0.075 ppm on an 8-hour
average basis) was established by EPA in 2008 to protect public health
with an adequate margin of safety. As stated earlier, all of Maine's
air quality meets the 2008 ozone NAAQS and all of Maine is designated
attainment/unclassifiable for the 2008 ozone NAAQS (40 CFR 81.320). See
Response 1 and Table 1, above. In addition, ozone trends in
Maine show improving air quality. For example, EPA AQS ozone data show
that in 1983 there were 30 days on which the 2008 ozone NAAQS was
exceeded \5\ in Maine. By 1993, the number of days on which the ozone
NAAQS was exceeded had dropped to 20, and by 2003 that number was 15.
In 2013, preliminary ozone data show only 5 days on which the 2008
ozone NAAQS was exceeded in Maine. Maine has also seen a significant
reduction in its 8-hour ozone design values over the last 30 years. For
example, the 8-hour ozone design values for Cumberland County for the
1983-1985, 1991-1993, 2001-2003, and 2011-2013 time periods are 0.116
ppm, 0.098 ppm, 0.088 ppm, and 0.069 ppm, respectively. Similarly, the
8-hour ozone design values for York County for the same time periods
are 0.115 ppm, 0.102 ppm, 0.091 ppm, and 0.075 ppm, respectively. Due
primarily to emission reductions upwind of Maine, EPA expects this
improving ozone air quality trend to continue in Maine.
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\5\ An ozone monitor can ``exceed'' the level of the NAAQS
(0.075 ppm or 75 ppb) on average three times a year and still
``meet'' the 2008 ozone NAAQS. Any one monitor with a design value
above the level of the NAAQS is not meeting the NAAQS. Since Maine
has many monitors it is likely and common that different monitors
record exceedances on different days. This is one way Maine can have
5 ``exceedance'' days and still not violate the level of the ozone
NAAQS. The other is that in one very hot year Maine can have 5
exceedance days, but have only one or two exceedance days in the two
other years that are included in the calculation of the three-year
average design value.
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As noted in Maine's request, NOX emissions in Maine have
been reduced over the past 10 years, and this trend is expected to
continue. This trend has been demonstrated by a number of SIP revisions
submitted by ME DEP and approved by EPA in recent years. In those SIP
submittals, Maine has shown that NOX emissions across the
state will continue to decrease into the future as a result of the
implementation of a variety of state and federal control strategies,
none of which are affected by Maine's section 182(f) NOX
exemption being approved by EPA. Examples of this are the Ozone
Redesignation and Maintenance Plans for: (1) Portland, Maine; and (2)
Hancock, Knox, Lincoln and Waldo Counties, each approved by EPA on
December 11, 2006 (71 FR 71489). In the state's maintenance plans for
these areas, ME DEP projected that typical summer day NOX
emissions in Cumberland, Hancock, Knox, Lincoln, Sagadahoc, Waldo, and
York Counties (the same counties affected by the expansion of Maine's
previously approved section 182(f) NOX exemptions) would
decrease by 42.5% between 2005 and 2016. Another example is Maine's
Regional Haze Plan approved by EPA on April 24, 2012 (77 FR 24385). In
that plan, Maine projected that annual NOX emissions across
the entire state would decrease by 52.7% between 2002 and 2018. EPA's
August 5, 2013 NPR for Maine's NOX exemption request
explains that granting the NOX exemption will only result in
rendering inapplicable any additional NOX reduction
requirements that would be required pursuant to the 2008 ozone NAAQS
and which would be beyond already existing pollution control
requirements.
Comment #4: Several commenters noted that the Clean Air Scientific
Advisory Committee (CASAC) has recommended a tighter ozone standard
which, if promulgated, would put much of coastal Maine into ozone
nonattainment.
Response #4: EPA is required by the CAA to evaluate and act on
Maine's NOX exemption request as it applies to the current
ozone NAAQS, the ozone standards EPA promulgated in 2008. Section
182(f) of the CAA does not contain NOX exemption evaluative
criteria relating to NAAQS that may be promulgated in the future.
However, if EPA were to revise the ozone NAAQS in the future, EPA would
evaluate Maine's ozone data at that time and make appropriate decisions
regarding attainment and nonattainment in Maine during the designation
process. If EPA in the future designates a portion of Maine as
nonattainment under a revised ozone NAAQS, that area would
automatically be subject to nonattainment new source review (NSR) and
RACT for NOX, independent of whether or not EPA approves
Maine's NOX exemption request for the 2008 ozone NAAQS. As
noted in EPA's implementation rule for the 1997 ozone NAAQS (69 FR
23951, April 30, 2004) and in EPA's proposed implementation rule for
the 2008 ozone NAAQS (78 FR 34178, June 6, 2013), a NOX
exemption request must be submitted to EPA by a state with respect to a
specific ozone NAAQS and must be re-submitted for each subsequent ozone
NAAQS. Thus, if EPA does revise the ozone NAAQS in the future, we would
expect that Maine would be required to submit a new request for a
NOX exemption for the revised ozone NAAQS were Maine to
[[Page 43950]]
determine that a NOX exemption should continue in any
portion of the state.
Comment #5: Certain commenters asserted that, notwithstanding
Maine's air trajectory analysis, EPA's Cross State Air Pollution Rule
(CSAPR) modeling shows that Maine significantly contributes to
nonattainment, and interferes with maintenance of the 2008 ozone NAAQS.
For example, CSAPR source apportionment modeling for the ozone monitor
in Barnstable County, Massachusetts shows that Maine's contribution to
that monitor is greater than 1% of the 2008 ozone NAAQS (i.e., 1.217
ppb).
The commenters further asserted that, although CSAPR focused on the
0.08 ppm ozone NAAQS, had CSAPR focused on the 0.075 ppm 2008 NAAQS,
Maine would have been identified at that time as a significant
contributor of ozone-related pollutants to Barnstable County,
Massachusetts. That is because, the commenters assert, the Barnstable
County ozone monitor would have been identified as having attainment
and maintenance problems in relation to a 0.075 ppm standard (i.e., at
a level of 76.7 ppb).
The commenters further assert that the Barnstable County monitor
has a current design value (DV) of 0.075 ppm (based upon 2010-2012
certified data), which is right at the level of the 2008 ozone NAAQS.
An ozone monitor's DV consists of the 3-year average of the 4th highest
ozone concentrations in each of the three years, at that monitor,
which, for the Barnstable County monitor were 78 ppb (2010), 68 ppb
(2011), and 79 ppb (2012), respectively. While the Barnstable County
monitor is currently monitoring attainment, two of those three years
were well above attainment levels for the 2008 ozone NAAQS. Thus, the
commenters assert, this indicates that EPA's CSAPR modeling was
correct, and that Barnstable does have an attainment/maintenance
problem in relation to the 2008 ozone NAAQS. Thus, the commenters
conclude that the CSAPR modeling indicates that Maine's emissions
significantly contribute to ozone attainment/maintenance problems in
Massachusetts.
The commenters continue by stating that Maine's back trajectory
analysis is incomplete because it only considered nearby nonattainment
areas in Connecticut and Massachusetts, and did not consider areas that
are currently designated attainment that have been nonattainment in the
past (i.e., maintenance areas). They further assert that EPA modeling
from the Clean Air Interstate Program (2005) and CSAPR (2011) shows
that Maine has a 0.3 ppb nonattainment area impact on ozone levels in
Massachusetts and a 0.141 ppb impact in Connecticut. Any reduction in
controls, in Maine, the commenters assert, will result in greater
adverse ozone impacts in these areas.
Response #5: The modeling conducted by EPA to support the
development of the Clean Air Interstate Rule (CAIR) and CSAPR is not
directly relevant to our analysis of Maine's request for a
NOX waiver under section 182(f), because neither modeling
analysis directly addresses ozone contribution with respect to the 2008
ozone standard. The CAIR modeling was conducted to analyze interstate
transport with respect to the 1997 ozone and 1997 PM2.5
NAAQS and the CSAPR modeling was conducted to analyze interstate
transport with respect to the 1997 ozone and the 1997 annual
PM2.5 and the 2006 24-hour PM2.5 NAAQS. Thus,
neither modeling analysis provides information on downwind areas that
will have difficulty attaining or maintaining the 2008 ozone standard,
or on upwind areas that contribute to those problems. Nevertheless, it
is informative that the CSAPR modeling shows a very small contribution
from Maine to nonattainment sites (relative to the 1997 ozone standard)
in the OTR. The CSAPR modeling does strongly suggest that Maine's ozone
impact on these areas is not meaningful. (EPA's response to comment
8 below discusses issues related to Maine's ozone impact in
greater detail).
In addition, it is important to note that Barnstable County,
Massachusetts is designated attainment for the 2008 ozone NAAQS (see 40
CFR 81.320). Also, 2010-2012 quality-assured, certified ozone data
(available in EPA's AQS database) for the Truro, Massachusetts ozone
monitor (the ozone monitor in Barnstable County) meets the ozone NAAQS.
As the commenter noted, the design value for this monitor for this
period is 0.075 ppm. The preliminary AQS ozone data for 2013 also meets
the NAAQS (design value period 2011-2013). The preliminary design value
at Truro for 2011-2013 is 0.073 ppm. Thus, for purposes of evaluating
Maine's request for a NOX waiver, EPA has decided it is
appropriate to treat Barnstable County, Massachusetts as an attainment
area.
Furthermore, the Maine DEP has undertaken, and EPA has reviewed, an
additional analysis of the elevated ozone levels recorded at the Truro
ozone monitor. The ME DEP generated back trajectories for all days
during 2008 to 2012 that the Truro monitor showed an exceedance, with
final AQS data, of the 2008 ozone NAAQS, at the Truro ozone monitor. ME
DEP also generated back trajectories for days during 2013 for which
preliminary AQS ozone data showed an exceedance at the Truro monitor.
In all, there were back trajectories generated by the ME DEP for 18
separate days, and the trajectories show that on those exceedance days
the air parcels do not originate or traverse any part of Maine. This
trajectory analysis does not show any meaningful ozone contribution
from Maine to the Truro site on days conducive to ozone exceedances in
Truro, for the period 2008 to 2013.
Comment #6: One commenter states that Maine's submission to EPA
indicates that the state's VOC and NOX emissions are of
small magnitude compared to other OTR states. The State of Delaware
commented that, based on the emissions data Maine provided in its
submittal, half of the OTR states' NOX emissions are smaller
in magnitude than Maine's (i.e., CT, DE, Washington DC, NH, RI, and
VT), and the other half's NOX emissions are of greater
magnitude than Maine's (i.e., MD, MA, NJ, NY, PA, and VA).
Response #6: EPA acknowledges that Maine's NOX exemption
submission to EPA states that Maine's NOX emissions are
small compared to the total emissions of the entire OTR, and that Maine
provided that comparison as one aspect of the total weight of evidence
supporting its request. The magnitude of NOX emissions in an
area, however, is not a criterion for granting a NOX
exemption request. Neither the magnitude of Maine's NOX
emissions, nor the fact that Maine's emissions constitute a relatively
small percentage of total NOX emissions generated in the
OTR, were factors that influenced EPA's evaluation of the merits of
Maine's NOX exemption request. The primary technical
information that forms the basis of EPA's approval of Maine's
NOX exemption request consists of the back trajectory
analyses described in Maine's submittal, the conclusions of which are
generally supported by the photochemical grid modeling conducted
previously by EPA. Moreover, Maine is not seeking to increase its
NOX emissions by eliminating or curtailing existing emission
controls currently being implemented by existing stationary sources in
Maine. As explained earlier, EPA expects the overall trend in
anthropogenic NOX emissions to continue to decline in Maine
over time due to already existing and enforceable pollution controls on
those sources of NOX emissions. (VOC emissions are not the
subject of this final action, which, as already noted, only addresses
Maine's request for a
[[Page 43951]]
NOX exemption under CAA section 182(f).)
Comment #7: One commenter stated that the nonattainment new source
review requirement to implement a level of emissions control
constituting the Lowest Achievable Emission Rate (LAER), that would be
replaced by Best Available Control Technology (BACT) by virtue of the
NOX exemption EPA is approving, is very important to air
quality and therefore should not be replaced. The commenter notes that
LAER ensures a more stringent level of control. The commenter further
states that such control is the backbone of maintaining air quality and
is especially important where air quality is at, or near, the NAAQS, as
are parts of Maine today. The commenter further concludes that ME DEP's
position is that BACT, the level of emissions control applicable to
major new and modified stationary sources in areas designated
unclassifiable/attainment for a particular NAAQS, will be as effective
as LAER for reducing ozone levels, and the commenter disagrees with
that position which the commenter attributes to ME DEP. The commenter
asserts that a review of EPA's RACT/BACT/LAER Clearinghouse shows a
very wide range for BACT emission limits, whereas LAER is either unique
or more stringent than BACT, or at least equivalent to the most
stringent BACT limits. The commenter points to an example to illustrate
its point, one of ME DEP's air pollution control licenses that would
destroy fumes from loading crude oil into marine tank vessels. The
commenter also makes a number of other assertions, all of which are
designed to argue that LAER is more stringent than BACT and that EPA
should therefore not grant Maine's request for a NOX
exemption.
Response #7: In essence, the commenter asserts that a source
required to meet a LAER level of emissions control will almost all of
the time achieve greater emission reductions than a source that is
required to meet a BACT level of emissions control. The commenter
further alleges that the ME DEP takes the position that there is little
to no difference between LAER and BACT levels of control when
controlling NOX emissions. (VOCs are not the subject of this
final action, and so are not discussed here).
Whether or not ME DEP actually does take the position that, in most
cases, a BACT level of control will yield the same level of emissions
reductions as a LAER level of control is not germane to EPA's analysis
of the approvability of Maine's request for a NOX exemption
under CAA section 182(f). Thus, whether the comment were true, or not,
it would not be relevant to this final action. Whether BACT or LAER
applies to major new or modified sources of NOX in Maine is
simply a factual consequence of whether EPA grants Maine's
NOX exemption request, and is not a technical or legal
factor that determines (even in part) whether Maine qualifies for a
NOX exemption under CAA section 182(f). As such no response
to the comment is required.
Nonetheless, EPA notes that LAER and BACT determinations are made
independently, based on the specific facts for each project. By
definition, the main difference between the two types of determinations
is the fact that a BACT analysis will take into account energy,
environmental, and economic impacts and other costs required to meet a
specific emission limit. These factors are not relevant, however, when
determining an emission limit that meets LAER. For these reasons,
whether an emission limit determined as a result of a BACT or LAER
analysis would turn out to be equivalent in any one particular case
depends largely on the case-specific facts regarding the source and the
various factors considered in the analysis.
Moreover, EPA's approval of Maine's request is based on a technical
demonstration submitted by ME DEP showing that NOX emissions
in Maine are not having a meaningful adverse impact on the ability of
any ozone nonattainment areas located in the OTR to attain the ozone
standards during times when elevated ozone levels are monitored in
those areas. Specifically, Maine analyzed the nearest of these areas
(i.e., the nonattainment areas in Massachusetts and Connecticut).
Consequently, any additional reductions in NOX emissions
(such as the difference between LAER and BACT) are not necessary for
attainment or maintenance of the ozone standards in the ozone
nonattainment areas nearest to Maine and located in the OTR.
Comment #8: Commenters stated that Maine's technical demonstration
``lacks the proper analysis needed for EPA to approve the
[NOX waiver] request,'' and that section 182 ``specifically
requires a technical demonstration that shows that `net air quality
benefits' are greater in the absence of NOX reductions from
the sources concerned.'' The commenters also stated that the other two
tests available under section 182(f), ``contribution to attainment''
and ``net ozone benefit,'' only apply to nonattainment areas [and all
of Maine is designated attainment] and the ``contribution to
attainment'' test is only available in areas not located within the
OTR.
Response #8: EPA has evaluated Maine's request for a NOX
waiver and concluded that the State has met the relevant statutory test
and that approval of the request is consistent with the requirements of
the Clean Air Act. This response explains why we have concluded that
the ``net ozone air quality benefit'' test in CAA section 182(f)(1)(B)
is the relevant statutory test and how the information available to the
Agency demonstrates that Maine has satisfied the requirements of that
test.
First, as explained in our 2005 NOX waiver guidance
(``Guidance on Limiting Nitrogen Oxides Requirements Related to 8-Hour
Ozone Implementation,'' January 2005) (``2005 NOX Waiver
Guidance''),\6\ EPA concludes that the ``net ozone air quality
benefit'' test outlined in section 182(f)(1)(B) applies to
nonattainment and attainment areas within an ozone transport region.
Section 182(f)(1)(B) provides that the NOX requirements in
section 182(f) shall not apply for ``nonattainment areas within . . .
an ozone transport region if the Administrator determines . . . that
additional reductions of [NOX] would not produce net ozone
air quality benefits in such region.'' 42 U.S.C. 7511a(f)(1)(B). As
explained in the 2005 NOX waiver guidance, EPA believes
``[i]t would be absurd and, therefore, it is unlikely that Congress
intended to apply more stringent requirements in the attainment/
unclassified portions of the [OTR] than would apply to more polluted
portions.'' 2005 NOX Waiver Guidance at pp. 23-24. Moreover,
a key statutory consequence of a state's inclusion in the OTR is that
key nonattainment area requirements also apply in attainment areas. CAA
section 184(b)(2), for example, provides that certain sources shall be
``subject to the requirements which would be applicable . . . if the
area were classified as a Moderate nonattainment area.'' 42 U.S.C.
7511c(b)(2). In this context, EPA concludes that the statutory language
in CAA section 182(f) is ambiguous. EPA further believes that
[[Page 43952]]
it would not be reasonable to interpret the requirements of CAA section
182(f) as making it more difficult for an attainment area in the OTR
than a nonattainment area in the OTR to qualify for a NOX
waiver. EPA thus concludes that the ``net ozone air quality benefit''
is the appropriate statutory test to apply when evaluating Maine's
request.
---------------------------------------------------------------------------
\6\ The NOX waiver guidance is not binding and EPA
remains free to reconsider whether the recommendations set forth in
the guidance are applicable or not in any given situation. As
explicitly explained in the guidance: ``[t]his document does not
impose binding, enforceable requirements on any party, nor does it
assure that EPA may approve all instances of its application, and
thus the guidance may not apply to a particular situation based upon
the circumstances presented. The EPA retains the discretion to adopt
approaches on a case-by-case basis that differ from this guidance
where appropriate.'' 2005 NOX Waiver Guidance at p.3
---------------------------------------------------------------------------
Second, CAA section 182(f)(1)(B), which establishes the ``net ozone
air quality benefit'' test, states that the NOX requirements
in section 182(f) shall not apply if the Administrator determines that
additional reductions of NOX emissions would not produce a
``net ozone air quality benefit.'' As an initial matter and as
acknowledged in the 2005 guidance, EPA believes the term ``net ozone
air quality benefit'' is ambiguous. It is thus appropriate for EPA to
look to other relevant CAA provisions in interpreting this term. Of
particular relevance are CAA section 184 (which establishes the OTR)
and CAA section 176A (which clarifies the purpose and intent behind
creation of the OTR). These two provisions shed light on how terms in
section 182(f) should be interpreted. Specifically, sections 176A and
184 focus on concerns regarding interstate transport of pollutants
leading to a violation of a NAAQS in one or more states. Said another
way, these sections focus on situations in which transported pollutants
are making a meaningful contribution to ozone nonattainment. Put
simply, Congress was concerned with reducing the impact of transported
pollutants to areas that were not attaining the ozone standard. This
plain, but important, conclusion also is supported by other provisions
contained in section 184. In this context, EPA concludes that it is
appropriate to interpret the ``net ozone air quality benefit'' test in
CAA section 182(f)(1)(B) as focused on downwind locations and days
above the standard. In other words, the legally relevant ozone air
quality benefits are those that occur in downwind nonattainment areas
on days when those areas have air quality above the standard. Thus, we
conclude it is appropriate, when evaluating whether this test has been
satisfied, to focus on the impact of NOX emissions from the
area requesting a NOX waiver on any nonattainment area's
ability to attain the ozone standards.
This conclusion is also consistent with the 2005 guidance which
says that the analysis should focus on values above the ozone standard,
and, in some situations, may also need to consider values just below
the standard. The suggestion that ozone impacts on areas with values
just below the standard should be considered is made in the context of
discussing the analysis needed when implementation of NOX
emission controls would actually cause increased ozone levels in some
areas. In such a situation, it is logical to consider impacts across
areas to determine whether there is, on net, a benefit or disbenefit
associated with NOX controls in the relevant area. EPA does
not believe the guidance suggests that values below the standard should
be considered in other circumstances such as those presented by Maine's
request. In any event, as noted above, guidance documents by their
nature are not binding and EPA retains discretion to depart from the
guidance in appropriate circumstances. For the reasons given above, EPA
has determined that it is reasonable in this situation to focus on
nonattainment areas and on days when air quality in those areas exceeds
the standard.
Third, in evaluating whether Maine has satisfied the ``net ozone
air quality benefit'' test, we considered Maine's unique position at
the northern extremity of the OTR, our 2005 guidance, the technical
analysis presented by Maine and information provided by commenters in
response to our notice of proposed rulemaking. Maine is in a relatively
unique position for several reasons: (1) Because of its geographic
position, Maine is generally downwind of nearby areas with high ozone
on the days when those areas are experiencing ozone nonattainment
problems; (2) Maine's back trajectory modeling analysis shows that none
of the air parcels associated with the nonattainment areas nearest to
Maine pass through or traverse Maine's airshed on days when the ozone
standard is exceeded; and (3) CSAPR modeling suggests that Maine's
impact on nonattainment areas is not meaningful. For all of these
reasons, we believe that these additional NOX emission
reductions would not produce any meaningful ozone benefits in areas
above the standard within the OTR and therefore concluded that Maine's
technical demonstration satisfies the requirements of the ``net ozone
air quality benefits test.''
Fourth, as noted above, it is important to emphasize that EPA's
decision to grant Maine's request will not result in the relaxation of
any already required and operational emissions controls currently in
place at stationary sources in Maine. Even with a NOX
exemption in place, Maine will still be required to implement the air
permitting requirements applicable in attainment areas for major new
and modified stationary sources of NOX throughout the entire
State of Maine (rather than the permitting requirements applicable in
nonattainment areas). Major new and modified facilities must install
best achievable control technology (BACT) to reduce emissions. In
addition, the permitting requirements in Maine assure that the air
quality does not degrade in areas that are currently meeting ozone
standards. To obtain a new source permit, facilities must demonstrate
as part of the permitting process that the new or modified source will
not cause violations of air quality standards. As stated earlier, Maine
also has shown that NOX emissions across the state will
continue to decrease into the future as a result of implementation of a
variety of state and federal control strategies, none of which will be
affected by EPA's decision to grant Maine's request for a section
182(f) NOX exemption.
Finally, EPA's case-specific analysis of Maine's unique factual
circumstances is consistent with EPA's obligation under CAA section
182(f) to consider the NOX and VOC study required under CAA
section 185B. Section 185B of the Act required EPA, in conjunction with
the National Academy of Sciences, to conduct a study on the role of
ozone precursors in tropospheric ozone formation and control and to
submit a final report to Congress. See ``The Role of Ozone Precursors
in Tropospheric Ozone Formation and Control: A Report to Congress,''
EPA-454/R-93-024, July 1993. Section 5 of that report presents the key
findings of the study and EPA's response. The essential thrust of the
study and report was to analyze the various factors that contribute to
the problem of ozone nonattainment, including consideration of the
complexities associated with the roles that NOX and VOC play
in ozone formation. For example, Section 185B provides, in part, that
``[t]he study shall examine the roles of NOX and VOC
emission reductions, [and] the extent to which NOX
reductions may contribute (or be counterproductive) to achievement of
attainment in different nonattainment areas. . .'' Thus, in parallel
with our discussion in Response 8, above, in which we explain
that the purpose and intent underlying CAA sections 182(f), 184, and
176A is to address the problem of ozone nonattainment within the OTR,
Congress required EPA, through section 185B, to conduct a study and
submit a report with the goal of identifying improved ways of reducing
ozone in ozone nonattainment areas. Consequently, it is reasonable as
also
[[Page 43953]]
explained in our Response 8 to focus on Maine's impacts on
nonattainment areas and, in that light, EPA's approval of Maine's
request for a NOX waiver is consistent with the purpose and
content of the CAA section 185B study and report to Congress.
Comment #9: Several commenters asked what would happen if Maine
were to be designated nonattainment for the ozone NAAQS in the future.
Response #9: If portions of Maine are designated nonattainment in
the future for the current or a future ozone NAAQS, those areas would
automatically be subject to all applicable ozone nonattainment
requirements, including nonattainment NSR for NOX emissions
under ME DEP's new source review permitting requirements.
Comment #10: Several commenters discussed the benefits of the OTR
and alleged that if Maine is allowed to opt out of these uniform
requirements, similar petitions could follow and the benefits of the
OTR will be minimized.
Response #10: To the extent that these comments are intended to
relate to Maine's OTR restructuring request for VOC nonattainment new
source review, as noted above, EPA is not taking final action in this
notice on that aspect of Maine's request; so EPA here provides no
response to the comment as it relates to that specific part of Maine's
request. With respect to Maine's NOX exemption request,
however, as discussed above, Maine's location at the northern extremity
of the OTR is unique. Moreover, EPA notes that its prior approvals of
Maine's NOX exemption requests in 1995 and 2006 did not
result in other NOX exemption requests from states in the
OTR. If, however, such a request were to be submitted to EPA by another
state in the OTR, EPA would evaluate that request and conduct notice
and comment rulemaking as appropriate on any proposed action on that
request.
Comment #11: One commenter said he would be willing to pay more for
gasoline to keep Maine's air cleaner.
Response #11: EPA's approval of Maine's NOX exemption
request will have no effect on gasoline formulation or gasoline prices.
There is no relationship under the CAA between gasoline prices and
whether Maine legally qualifies for a NOX exemption under
CAA section 182(f).
Comment #12: One commenter states that nearly every state in the
13-state OTR has reduced its NOX and VOCs by a higher rate
relative to its 1990 baseline than has Maine. The commenter states that
these data, covering the period 1990 to 2008, show that upwind states
have shouldered a more significant burden to reduce air pollution than
has Maine.
Response #12: EPA agrees that significant emission reductions of
NOX have occurred throughout the OTR, and also throughout
the country, as a result of both state and federal pollution control
efforts. As the commenter notes, the rate of NOX emissions
decreases varies from state to state. The exact rate of NOX
emissions decreases in Maine from 1990 to the present does not affect
Maine's analysis supporting its request for a NOX exemption,
nor does it constitute a relevant fact that would or should inform
EPA's evaluation and analysis of Maine's request for a NOX
exemption under section 182(f). As explained earlier in response to
other comments, the relevant factors for EPA's evaluation of Maine's
NOX exemption request essentially consist of the fact that
all of Maine is attaining the ozone NAAQS and that Maine's
NOX emissions do not meaningfully affect nonattainment areas
within the OTR, on days when those areas exceed the ozone NAAQS. Again,
the amount of NOX emitted and controlled by other states is
not a factor relevant to EPA's analysis under CAA section 182(f) of a
NOX exemption request. To the extent the comment relates to
VOC emissions, EPA is not taking action in this final rulemaking on
Maine's OTR restructuring request, and so EPA provides no response here
to the comment in that respect.
Comment #13: One commenter noted that, if EPA approves Maine's
requests, hazardous air pollutants will increase in Maine.
Response #13: The 1990 CAA Amendments significantly expanded EPA's
authority to regulate hazardous air pollutants (HAPs). Section 112 of
the CAA lists 187 HAPs to be regulated by source category. The National
Emission Standards for Hazardous Air Pollutants (NESHAPs) promulgated
after the 1990 CAA Amendments are found in 40 CFR Part 63. These
standards require application of technology-based emissions standards
referred to as Maximum Achievable Control Technology (MACT).
Consequently, these post-1990 NESHAPs are also referred to as MACT
standards. These standards are not affected by this final rulemaking
action.
Comment #14: Several commenters stated that Maine should do its
``fair share'' in controlling air pollution.
Response #14: As noted earlier, Maine is not requesting to
discontinue or remove from its SIP any existing NOX
pollution controls. Specifically, existing NOX RACT
requirements already contained in Maine's SIP will remain in Maine's
SIP and stationary sources subject to those requirements before our
action will continue to be subject to those same requirements. As
explained earlier and in our August 5, 2013 NPR, for major new and
modified stationary sources of NOX, Maine's PSD permitting
requirements will apply in lieu of the nonattainment NSR permitting
requirements. The PSD permitting program is the major new source review
permitting program under the CAA that generally applies in attainment
areas (such as Maine). EPA has determined that Maine qualifies for a
NOX exemption under CAA section 182(f)(1)(B) as a matter of
law and thus Maine will, in fact, be doing what it is required to do
legally under the CAA in order to control NOX emissions.
Comment #15: EPA received a comment that an economic analysis
should have been performed. Another commenter noted that Maine should
be required to show its economic analysis in support of its stated
rationale that: ``The RACT, Lowest Achievable Emission Rate (LAER) and
1.15 VOC and NOX emission offset requirements hinder
economic sustainability and development in Maine.''
Response #15: No provision of CAA section 182(f) CAA, or any aspect
of EPA's 2005 NOX exemption guidance, indicates that an
economic analysis is a relevant part of EPA's evaluation of a state's
request for a NOX exemption under CAA section 182(f). The
basis for EPA's action has been explained in EPA's August 5, 2013 NPR
and in this final notice. The relevant factors are the CAA section
182(f)(1)(B) criteria that must be met by a state requesting a
NOX exemption and the technical demonstration submitted by
such state in support of its request.
Comment #16: One commenter requested that EPA conduct additional
modeling and analyses to determine if new sources, or increased
emissions from existing sources, would cause a violation of the ozone
standard in York County, Maine.
Response #16: As discussed in more detail in Response 3,
ME DEP's emission projections included in its EPA-approved ozone
redesignation request and in its regional haze SIP submittal indicate
that NOX emissions in York County, and in the entire state
of Maine, are projected to decrease in the future. Furthermore, any new
source would, even after EPA's approval of Maine's NOX
waiver request, be subject to Maine's PSD permitting requirements.
Under the PSD requirements, a source must demonstrate that its
emissions, along with other sources, will not cause of a
[[Page 43954]]
violation of ambient air quality standards. (See Maine's Chapter 115,
``Major and Minor Source Air Emission License Regulations,'' section
7.)
Comment #17: EPA received numerous supportive comments from
specific industrial sources in Maine; groups representing the lumber,
wood and paper industries in Maine; and environmental consultants in
Maine that usually represent Maine industries. All of these groups
favor EPA's approval of Maine's section 182(f) NOX exemption
request, dated October 13, 2012. The favorable comments generally point
to the fact that Maine is attaining the 2008 ozone NAAQS (40 CFR
81.320) and that much of Maine has ozone air quality well below the
level of the 2008 ozone NAAQS. Some of the supportive comments also
agree with EPA that Maine's October 13, 2012 submittal for a
NOX exemption contains a technical demonstration that meets
the requirements of section 182(f) of the CAA. Several of the
supportive comments also mention the benefit to Maine's economy that
will result from EPA's approval of Maine's request, and express concern
about negative impacts on employment in the state that would occur if
EPA were to deny Maine's request.
Response #17: The basis for EPA's approval of Maine's
NOX exemption request has been discussed in detail in EPA's
August 5, 2013 NPR and in this final notice. While EPA agrees that it
is appropriate to approve Maine's NOX exemption request in
accordance with CAA section 182(f)(1)(B), benefits or harms to Maine's
economy are not part of the CAA section 182(f)(1)(B) analysis.
Therefore, EPA has not taken economic factors, whether favorable or
unfavorable, into account in approving Maine's request for a
NOX exemption under CAA section 182(f)(1)(B).
Comment #18: Several commenters commented on the public
participation procedures Maine used in relation to its NOX
exemption request, stating that notice of Maine's intended action was
difficult to find on the ME DEP's internet page, and that ME DEP failed
to provide adequate notice in Maine newspapers. One commenter stated
that ``DEP failed to give reasonable notice by prominent advertisement
in the areas affected--essentially the entire state--by their
Restructure Request.''
Response #18: The State of Maine and EPA followed established and
appropriate public notice and comment procedures under applicable state
and federal law in relation to Maine's NOX exemption
request, including procedures applicable to revisions of Maine's state
regulations, and procedures applicable to submission of its revised
regulations to EPA as a SIP revision. On September 10, 2013, Maine DEP
held a public hearing on the state's SIP revision, and the hearing was
well attended. Numerous comments were received by Maine at the hearing,
as well as by mail and email. In addition, EPA extended the public
comment period provided in its August 5, 2013 NPR for an additional 30
days (for a total of 60 days) in order to give the public additional
time to provide comments (78 FR 54813, September 6, 2013). EPA also
received numerous comments, from approximately 30 parties, that are
being addressed in this notice. As noted earlier, Maine's request for
OTR restructuring relating to VOC nonattainment new source review is
not the subject of EPA's final action here. EPA also is not taking
action to revise the regulations in Maine's SIP as requested by Maine
in its submittal dated November 18, 2013, because the regulations in
the SIP revision are only relevant to the OTR restructuring aspect of
the state's request and EPA is not taking action on that aspect of
Maine's request. In this final action, EPA is only approving Maine's
NOX exemption request, dated October 13, 2012, under section
182(f) of the CAA. Maine's SIP does not require revision in order for
the NOX exemption to take effect under the SIP, because the
SIP already contains language that accommodates the NOX
exemption that EPA is approving in this final action.
IV. Final Action
EPA is approving the State of Maine's request for an exemption from
the NOX requirements contained in Section 182(f) of the CAA
for the entire State of Maine specifically pertaining to (1) the
requirement to implement pollution controls meeting reasonably
available control technology (RACT) for emissions of NOX;
and (2) the nonattainment area new source review (NSR) permitting
requirements for major new and modified sources as they apply to
emissions of NOX. EPA is approving this request pursuant to
CAA section 182(f)(1)(B). If EPA subsequently determines, based on
future air quality analyses, that such NOX emissions
controls in Maine are necessary to meet the requirements of the CAA,
EPA may initiate rulemaking to revoke the NOX exemption
being approved in relation to the 2008 ozone NAAQS.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under Executive Orders 12866 and 13563
(76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any regulation subject
to notice and comment rulemaking requirements under the Administrative
Procedures Act or any other statute unless the agency certifies the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations and small governmental jurisdictions. For purposes
of assessing the impacts of this rule on small entities, small entity
is defined as: (1) A small business as defined in the Small Business
Administration's (SBA) regulations at 13 CFR 121.201;) (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field. After considering the economic impacts of this
rule on small entities, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
This rule will not impose any requirements directly on small entities.
Entities potentially affected directly by this rule include state,
local and tribal governments and none of these governments are small
governments. Other types of small entities are not directly subject to
the requirements of this rule.
D. Unfunded Mandates Reform Act
This action contains no federal mandate under the provisions of
title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for
[[Page 43955]]
state, local and tribal governments, in the aggregate, or the private
sector. This action imposes no enforceable duty on any state, local or
tribal governments or the private sector. Therefore, this action is not
subject to the requirements of section 202 and 205 of the UMRA. This
action is also not subject to the requirements of section 203 of the
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). It would not
have a substantial direct effect on one or more Indian tribes, since no
tribe has to develop an implementation plan under these regulatory
revisions. Furthermore, these regulation revisions do not affect the
relationship or distribution of power and responsibilities between the
federal government and Indian tribes. The CAA and the Tribal Air Rule
establish the relationship of the federal government and tribes in
developing plans to attain the NAAQS, and these revisions to the
regulations do nothing to modify that relationship. Thus, Executive
Order 13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as
applying only to those regulatory actions that concern health or safety
risks, such that the analysis required under section 5-501 of the EO
has the potential to influence the regulation. This action is not
subject to EO 13045 because it does not establish an environmental
standard intended to mitigate health or safety risks.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note) directs the EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs the EPA
to provide Congress, through OMB, explanations when the agency decides
not to use available and applicable voluntary consensus standards. This
action does not involve technical standards. Therefore, the EPA is not
considering the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies and activities on minority populations and low-income
populations in the United States. The EPA has determined that this
action will not have disproportionately high and adverse human health
or environmental effects on minority or low-income populations because
it does not affect the level of protection provided to human health or
the environment.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. section 801 et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
section 804(2). This rule will be effective August 28, 2014.
L. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 29, 2014. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen oxides, Ozone, Volatile organic compounds,
Intergovernmental relations, Reporting and recordkeeping requirements.
Dated: July 18, 2014.
Gina McCarthy,
Administrator.
Part 52 of chapter I, title 40 of the Code of Federal Regulations,
is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart U--Maine
0
2. Section 52.1023 is amended by adding paragraph (j) to read as
follows:
Sec. 52.1023 Control strategy: Ozone.
* * * * *
(j) Approval. EPA is approving an exemption request from the
nitrogen oxides (NOx) requirements contained in Section 182(f) of the
Clean Air Act for the entire state of Maine for purposes of the 2008
ozone National Ambient Air Quality Standard. The exemption request was
submitted by the Maine Department of Environmental Protection on
October 13, 2012. This approval exempts, for purposes of the 2008 ozone
standard, major sources of nitrogen oxides in Maine from:
[[Page 43956]]
(1) The requirement to implement controls meeting reasonably
available control technology (RACT) for NOX; and
(2) Nonattainment area new source review requirements for major new
and modified sources as they apply to emissions of NOX.
[FR Doc. 2014-17583 Filed 7-28-14; 8:45 am]
BILLING CODE 6560-50-P