[Federal Register Volume 67, Number 180 (Tuesday, September 17, 2002)]
[Proposed Rules]
[Pages 58551-58561]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23589]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[ME-68-7017b; FRL-7378-2]
Approval and Promulgation of Air Quality Implementation Plans;
Maine; Redesignation of the Portland, Maine Moderate Ozone
Nonattainment Area to Attainment, Determination of Attainment and
Approval of the Associated Maintenance Plan; or Determination of
Nonattainment as of November 15, 1997 and Reclassification of the
Portland, Maine Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing in the alternative either to redesignate the
Portland, Maine moderate ozone nonattainment area (the Portland Area)
to attainment for the 1-hour ozone National Ambient Air Quality
Standard (NAAQS), or to determine that the Portland Area did not attain
by November 15, 1997, and thus must be reclassified to serious. The
Portland Area is comprised of three counties in Maine; Cumberland,
Sagadahoc, and York. EPA is proposing to determine that the Portland
Area has attained the NAAQS. This determination is based on three years
of complete quality-assured ambient air monitoring data for the 1999-
2001 ozone seasons. The EPA is also proposing to approve the
maintenance plan, submitted by the Maine Department of Environmental
Protection as a revision to the Maine State Implementation Plan (SIP).
Approval of the maintenance plan would put into place a plan for
maintaining the 1-hour ozone standard for the next 10 years in the
Portland Area. EPA is also proposing to approve Maine's 1999 attainment
inventory for the Portland Area into the Maine State Implementation
Plan. This inventory establishes a 1999 ozone emission inventory of
volatile organic compounds and oxides of nitrogen for the Portland
nonattainment area in Maine.
In the alternative, EPA is proposing to find that the Portland Area
did not attain the 1-hour ozone NAAQS by November 15, 1997, the date
set forth in the Clean Air Act (CAA) for moderate nonattainment areas
that have received a 1-year attainment date extension under section
181(a)(5) of the CAA. If EPA finalizes this finding, the CAA provides
that the Portland Area would be reclassified, at least to a serious
nonattainment area. EPA is also taking
[[Page 58552]]
comment on a proposed schedule for submittal of the SIP revisions
required for serious areas should the Portland Area be reclassified and
a requirement that Maine develop an attainment demonstration that
provides for attainment as expeditiously as practicable. Finally, EPA
is proposing to grant an extended effective date for the determination
of nonattainment and reclassification to give time for facilities to
plan compliance with new construction permitting requirements.
DATES: Written comments must be received on or before October 17, 2002.
ADDRESSES: Written comments (two copies, if possible) should be sent
to: David B. Conroy at the EPA Region I (New England) Office, One
Congress Street, Suite 1100-CAQ, Boston, Massachusetts 02114-2023.
Copies of the State submittal and EPA's technical support document are
available for public inspection during normal business hours at the
following addresses: U.S. Environmental Protection Agency, Region 1
(New England), One Congress St., 11th Floor, Boston, Massachusetts,
telephone (617) 918-1664, and at the Maine Department of Environmental
Protection, Bureau of Air Quality Control, First Floor of the Tyson
Building, Augusta Mental Health Institute Complex, Augusta, Maine
04333-0017. Please telephone in advance before visiting.
FOR FURTHER INFORMATION CONTACT: Richard P. Burkhart, (617) 918-1664.
SUPPLEMENTARY INFORMATION: On July 9, 2002, the State of Maine
submitted a request that EPA redesignate the Portland ozone
nonattainment area (the Portland Area) to attainment. The State of
Maine simultaneously submitted its proposed maintenance plan for the
Portland Area and requested that EPA parallel process its approval of
that plan as a SIP revision. The State of Maine also submitted a 1999
attainment emission inventory for the Portland Area and requested that
EPA parallel process its approval of that inventory as a SIP revision.
Maine's redesignation request is based on the area attaining the 1-hour
ozone NAAQS for the period 1999-2001.
On August 1, 2002, Maine Department of Environmental Protection
(Maine DEP) held a public hearing on its proposed redesignation
request, maintenance plan, and 1999 attainment inventory for the
Portland Area. By letter dated August 14, 2002, EPA transmitted its
comments to the Maine DEP on these SIP elements. EPA gave Maine DEP
comments designed to refine Maine's submission, and DEP expects to
address these comments prior to finalization and submission to EPA of
the redesignation request, maintenance plan, and 1999 attainment
inventory for incorporation into the SIP. But the SIP revision that
Maine has proposed includes all the basic elements of what EPA is
proposing to approve.
On August 13 and 14, 2002, however, the ozone monitor for
Kennebunkport, Maine had preliminary ozone data readings over the 1-
hour NAAQS. These two exceedances may result in Maine violating the
NAAQS for the period 2000-2002. Although these monitor readings have
yet to be quality assured,\1\ EPA has preliminary evidence that this
area has violated the NAAQS for the period 2000-2002, and therefore,
may no longer qualify for redesignation. Pursuant to a consent decree
in Sierra Club and GASP v. Whitman, No. 1:00CV02206 (D.D.C), EPA is
obligated to act this fall to determinate whether the Portland Area
attained as of its attainment date, or, alternatively, to approve a
request to redesignate the Portland Area. Therefore, in the alternative
EPA is proposing not to approve this redesignation request and to
instead determine, pursuant to section 182(b) of the CAA, that the
Portland Area failed to attain the 1-hour ozone NAAQS by its attainment
date of November 15, 1997. This finding, if it becomes final, would
result in the reclassification of the Portland moderate area to
serious, as explained in more detail below.
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\1\ Maine DEP and EPA are currently this data and performing the
appropriate quality assurance and review procedures. Maine DEP and
EPA are also evaluating whether exceptional events (e.g., forest
fires) led to the elevated readings recorded during the August 13-
14, 2002 time period.
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In this document, EPA will cover the following:
I. What action is EPA proposing to take on the determination of
attainment, the redesignation request, the maintenance plan and the
1999 attainment inventory?
II. Why is EPA taking this action on the redesignation request
and maintenance plan?
III. What is the background for this redesignation action?
IV. What would be the effect of the redesignation?
V. What criteria must be met to redesignate an area to
attainment?
VI. What about the attainment demonstration, reasonable further
progress, reasonably available control measure requirements and
other requirements of section 172(c)(9)?
VII. What is EPA's analysis of the State of Maine's
redesignation request and maintenance plan?
VIII. What is an attainment emission inventory and why is EPA
proposing to approving it?
IX. What action is EPA proposing in the alternative to approving
the redesignation request, maintenance plan and 1999 attainment
inventory?
I. What Action Is EPA Proposing To Take on the Determination of
Attainment, the Redesignation Request, the Maintenance Plan and the
1999 Attainment Inventory?
Pursuant to a request from the State of Maine, EPA is proposing to
determine that the Portland moderate area is attaining the 1-hour ozone
NAAQS and to redesignate the Portland moderate ozone area from
nonattainment to attainment of the 1-hour ozone National Ambient Air
Quality Standard (NAAQS). We are also proposing to approve the Portland
Area's proposed maintenance plan submitted by Maine DEP for approval by
EPA as a SIP revision. This revision is being proposed under a
procedure called parallel processing, whereby EPA proposes rulemaking
action concurrently with the State's procedures for amending its SIP.
If the proposed maintenance plan is substantially changed, EPA will
evaluate those changes and may publish another notice of proposed
rulemaking. If no substantial changes are made EPA will approve the
state's maintenance plan, if EPA concludes that the area continues to
attain the NAAQS. Before EPA can approve this plan, Maine must finally
adopt the Portland Area's maintenance plan and formally submit that
plan to EPA for incorporation into the SIP. EPA is also proposing to
approve the proposed 1999 attainment inventory for the Portland Area
into the Maine State Implementation Plan. This request will establish
the 1999 ozone emission inventories of volatile organic compounds (VOC)
and oxides of nitrogen (NOX) emissions for the Portland
ozone nonattainment area in Maine.
II. Why Is EPA Taking This Action on the Redesignation Request and
Maintenance Plan?
EPA is proposing to take this action based on its evaluation of the
SIP elements submitted by the State and to preserve the option of
approving this plan if EPA determines that the redesignation request
and maintenance plan meet the requirements of the Clean Air Act (CAA).
III. What Is the Background for This Redesignation Action?
On November 15, 1990, the CAA amendments were enacted. Pursuant to
section 107(d)(4)(A), on November 6, 1991 (56 FR 56694), the Maine
counties of Cumberland, Sagadahoc, and York
[[Page 58553]]
were designated as the Portland moderate ozone nonattainment area.
The Portland Area has recorded three years of complete quality-
assured, violation-free ambient air quality monitoring data for the
1999 to 2001 ozone seasons, thereby demonstrating that the area has
attained the 1-hour ozone NAAQS for that period. On July 9, 2002, Maine
DEP submitted a request that EPA redesignate the Portland Area from
nonattainment to attainment of the 1-hour ozone standard. The Maine DEP
also requested that EPA parallel process its approval of the
maintenance plan in concert with the State of Maine's procedures for
amending its SIP.
Preliminary ozone data from 2002, however, may indicate that the
Portland Area is once again violating the 1-hour ozone NAAQS. Maine DEP
and EPA are currently evaluating these data and performing the
appropriate quality assurance and review procedures. If the Portland
Area is indeed violating the 1-hour ozone NAAQS, EPA will not proceed
to finalize approval of our determination of attainment, Maine's
redesignation request, maintenance plan and 1999 attainment inventory.
IV. What Would Be the Effect of This Redesignation?
The redesignation would change the official designation of the
Maine counties of Cumberland, Sagadahoc, and York from nonattainment to
attainment for the 1-hour ozone standard. It would also put into place
a plan for maintaining the 1-hour ozone standard for the next 10 years.
This maintenance plan includes contingency measures to address future
violations of the 1-hour ozone NAAQS.
V. What Criteria Must Be Met To Redesignate an Area to Attainment?
The Act provides the requirements for redesignating a nonattainment
area to attainment. Specifically, section 107(d)(3)(E) allows for
redesignation providing that: (1) The Administrator determines that the
area has attained the NAAQS; (2) the Administrator has fully approved
the applicable implementation plan for the area under Section 110(k);
(3) the Administrator determines that the improvement in air quality is
due to permanent and enforceable reductions in emissions resulting from
implementation of the applicable Federal air pollutant control
regulations and other permanent and enforceable reductions; (4) the
Administrator has fully approved a maintenance plan for the area as
meeting the requirements of section 175(A); and, (5) the state
containing such area has met all requirements applicable to the area
under section 110 and part D.
The EPA provided guidance on redesignation in the General Preamble
for the Implementation of Title I of the Clean Air Act Amendments of
1990 on April 16, 1992 (57 FR 13498) and supplemented on April 28, 1992
(57 FR 18070). The EPA has provided further guidance on processing
redesignation requests in the following documents:
(1) ``Part D New Source Review (part D NSR) Requirements for Areas
Requesting Redesignation to Attainment,'' Mary D. Nichols, Assistant
Administrator for Air and Radiation, October 14, 1994, (Nichols,
October 1994).
(2) ``Use of Actual Emissions in Maintenance Demonstrations for
Ozone and Carbon Monoxide, (CO) Nonattainment Areas,'' D. Kent Berry,
Acting Director, Air Quality Management Division, November 30, 1993.
(3) ``State Implementation Plan (SIP) Requirements for Areas
Submitting Requests for Redesignation to Attainment of the Ozone and
Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) on
or after November 15, 1992,'' Michael H. Shapiro, Acting Assistant
Administrator for Air and Radiation, September 17, 1993.
(4) ``State Implementation Plan (SIP) Actions Submitted in Response
to Clean Air Act Deadlines,'' John Calcagni, Director, Air Quality
Management Division, October 28, 1992. (Calcagni, October 1992).
(5) ``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' John Calcagni, Director, Air Quality Management Division,
September 4, 1992.
(6) ``Contingency Measures for Ozone and Carbon Monoxide (CO)
Redesignations,'' G.T. Helms, Chief Ozone/Carbon Monoxide Programs
Branch, June 1, 1992.
(7) State Implementation Plans; General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990 (57
FR 13498), April 16, 1992.
VI. What About the Attainment Demonstration, Reasonable Further
Progress, Reasonably Available Control Measure Requirements and Other
Requirements of Section 172(c)(9)?
As mentioned above EPA is proposing to determine that the Portland
Area has attained the one-hour ozone NAAQS. On the basis of this
determination of attainment, EPA is also proposing to determine that
certain attainment demonstration requirements (section 182(b)(1)),
along with certain other related requirements, of Part D of Title I of
the Clean Air Act, specifically the section 172(c)(1) requirements and
the section 172(c)(9) contingency measure requirements, are no longer
applicable to the Portland Area. The EPA believes it is reasonable to
interpret the provisions regarding attainment demonstrations, along
with certain other related provisions, so as not to require State
Implementation Plan (SIP) submissions, as described below, if an ozone
nonattainment area subject to those requirements is in fact in
attainment of the ozone standard (attainment of the NAAQS is
demonstrated with three years of complete, quality-assured, air quality
monitoring data). See 65 FR 3630, 3631-32 (Jan. 24, 2000). The EPA is
basing this determination upon the most recent three years of complete,
quality-assured, ambient air monitoring data for the 1999 to 2001 ozone
seasons that demonstrate that the ozone NAAQS has been attained in the
Portland Area. Maine had also attained during the 1998-2000 three-year
period. EPA has reviewed the ambient air monitoring data for ozone
(consistent with the requirements contained in 40 CFR Part 58 and
recorded in AIRS) for the Portland nonattainment area in the State of
Maine from 1999 through 2001. On the basis of that review EPA proposes
to conclude that Portland has attained the 1-hour ozone standard during
the period from 1999-2001.\2\
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\2\ As noted above, EPA will evaluate whether the Portland Area
continues to attain based on 2000-2002 data before finalizing this
action.
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The design value for the Portland nonattainment area, computed
using ozone monitoring data for 1999 through 2001 is 0.12 ppm. The
average annual number of expected exceedances is 0.7 for that same time
period. An area is considered in attainment of the standard if the
average annual number of expected exceedances is less than or equal to
1.0. Thus, based on 1999 through 2001, the Portland Area did not record
violations of the 1-hour air quality standard for ozone.
Subpart 2 of part D of Title I of the Clean Air Act contains
various air quality planning and SIP submission requirements for ozone
nonattainment areas. The EPA believes it is reasonable to interpret
provisions regarding reasonable further progress (RFP) and attainment
demonstrations, along with certain other related provisions, so as not
to require SIP submissions if an ozone nonattainment area, subject to
those requirements, is monitoring attainment of the ozone standard. EPA
[[Page 58554]]
has interpreted the general provision of subpart 1 of part D of Title I
(sections 171 and 172) so as not to require the submission of SIP
revisions concerning RFP, attainment demonstrations, or contingency
measures. As explained in a memorandum dated May 10, 1995 from John S.
Seitz, Director, Office of Air Quality Planning and Standards to the
Regional Air Division Directors, entitled ``Reasonable Further
Progress, Attainment Demonstration, and Related Requirements for Ozone
Nonattainment Areas Meeting the Ozone National Ambient Air Quality
Standard,'' EPA believes it is appropriate to interpret the more
specific RFP, attainment demonstration and related provisions of
subpart 2 in the same manner. See Sierra Club v. EPA, 99 F. 3d 1551
(10th Cir. 1996).
The attainment demonstration requirements of section 182(b)(1)
require that the plan provide for ``such specific annual reductions in
emissions * * * as necessary to attain the national primary ambient air
quality standard by the attainment date applicable under this Act.'' If
an area has in fact monitored attainment of the standard, EPA concludes
there is no need for an area to make a further submission containing
additional measures to achieve attainment. This is also consistent with
the interpretation of certain section 172(c) requirements provided by
EPA in the General Preamble to Title I where EPA stated there that no
other measures to provide for attainment would be needed by areas
seeking redesignation to attainment since ``attainment will have been
reached,'' (57 FR at 13564, see also September 1992 Calcagni memorandum
at page 6). Upon attainment of the NAAQS, the focus of state planning
efforts shifts to maintenance of the NAAQS and the development of a
maintenance plan under section 175A.
Similar reasoning applies to other related provisions of subpart 2,
including the contingency measure requirements of section 172(c)(9) of
the Clean Air Act. The EPA has previously interpreted the contingency
measure requirements of section 172(c)(9) as no longer being applicable
once an area has attained the standard since those ``contingency
measures are directed at ensuring RFP and attainment by the applicable
date'' (57 FR 13564).
The state must continue to operate an appropriate air quality
monitoring network, in accordance with 40 CFR part 58, to verify the
attainment status of the area. The air quality data relied upon to
determine that the area is attaining the 1-hour ozone standard must be
consistent with 40 CFR part 58, to verify the attainment status of the
area. The air quality data relied upon to determine that the area is
attaining the 1-hour ozone standard must be consistent with 40 CFR part
58 requirements and other relevant EPA guidance and recorded in EPA's
Aerometric Information Retrieval System (AIRS).
Furthermore, the determinations of these actions will not shield an
area from future EPA action to require emissions reductions from
sources in the area where there is evidence, such as photochemical grid
modeling, showing that emissions from sources in the area contribute
significantly to nonattainment in, or interfere with maintenance by,
other nonattainment areas (see section 110(a)(2)(D)). EPA has authority
under sections 110(a)(2)(A) and 110(a)(2)(D) to require such emission
reductions as necessary and appropriate to deal with transport
situations. Therefore, the requirements of section 172(c)(1) and
182(b)(1) concerning the submission of the ozone attainment
demonstration and reasonably available control measure requirements and
the requirements of section 172(c)(9) concerning contingency measures
for reasonable further progress or attainment will not be applicable to
the area (i.e. EPA is proposing to find that the requirements of
section 182(b)(1) and related requirements of section 172(c)(1) and
172(c)(9) do not apply to the area), if the Agency ultimately approves
Maine's redesignation request.
VII. What Is EPA's Analysis of the State of Maine's Redesignation
Request and Maintenance Plan?
1. The Area Must Be Attaining the 1-Hour Ozone NAAQS
For ozone, an area may be considered attaining the 1-hour ozone
NAAQS if there are no violations, as determined in accordance with 40
CFR 50.9 and appendix H, based upon three complete consecutive calendar
years of quality assured monitoring data. A violation of the 1-hour
ozone NAAQS occurs when the annual average number of expected daily
exceedances is equal to or greater than 1.05 per year at a monitoring
site. A daily exceedance occurs when the maximum hourly ozone
concentration during a given day is 0.125 parts per million (ppm) or
higher. The data must be collected and quality-assured in accordance
with 40 CFR part 58, and recorded in AIRS. The monitors should have
remained at the same location the duration of the monitoring period
required for demonstrating attainment. The Maine DEP submitted ozone
monitoring data for the April through September ozone season from 1999
to 2001. These data have been quality assured and recorded into AIRS.
During the 1999 to 2001 time period, the design value is 0.12 ppm. The
average annual number of expected exceedances is 0.7 for that same time
period. Maine also monitored attainment of the standard from 1998-2000.
Information concerning these monitors and monitoring data is available
in the docket for this action. Therefore, the first criterion of
section 107(d)(3)(E) has been satisfied based on 1999-2001 data. EPA
will evaluate whether this is still true based on the available 2000-
2002 data before final approval is granted.
2. The Area Must Have a Fully Approved SIP Under Section 110(k); and
the Area Must Have Met All Applicable Requirements Under Section 110
and Part D
General SIP elements are delineated in section 110(a)(2) of Title
I, part A. These requirements include but are not limited to the
following: submittal of a SIP that has been adopted by the state after
reasonable notice and public hearing; provisions for establishment and
operation of appropriate apparatus, methods, systems and procedures
necessary to monitor ambient air quality; implementation of a permit
program, provisions for part C, Prevention of Significant Deterioration
(PSD), and part D, New Source Review (NSR) permit programs; criteria
for stationary source emission control measures, monitoring and
reporting; and provisions for public and local agency participation.
For the purposes of redesignation, the Maine SIP was reviewed to ensure
that all requirements under the amended CAA were satisfied through
approved SIP provisions for the Portland Area. EPA has concluded that
the State of Maine's SIP for the Portland Area satisfies all of the
Section 110 SIP requirements of the CAA.
Before the Portland Area may be redesignated to attainment, it must
have fulfilled the applicable requirements of part D. Under part D, an
area's classification determines the requirements to which it is
subject. Subpart 1 of part D sets forth the basic nonattainment
requirements applicable to all nonattainment areas. Subpart 2 of part D
establishes additional requirements for nonattainment areas classified
under Table 1 of section 181(a). As described in the General Preamble
for the Implementation of Title 1, specific requirements of subpart 2
may override subpart 1's general provisions (57 FR 13501, April 16,
1992). The Portland Area was classified
[[Page 58555]]
as moderate ozone nonattainment. Therefore, in order to be
redesignated, the State of Maine must meet the applicable requirements
of subpart 1 of part D--specifically section 172(c) and 176, as well as
the applicable requirements of subpart 2 of part D.
With regard to the section 172(c) requirements, EPA has determined
that the redesignation request received from Maine DEP for the Portland
Area has satisfied all the relevant submittal requirements under
section 172(c) necessary for the area to be redesignated.
Under section 176(c) of the CAA requires states to establish
criteria and procedures to ensure that federally supported or funded
projects conform to the air quality planning goals in the applicable
SIP. The requirement to determine conformity applies to transportation
plans, programs and projects developed, funded or approved. under title
23 U.S.C. or the Federal Transit Act (``transportation conformity''),
as well as to all other federally supported or funded projects
(``general conformity''). Section 176 further provides that state
conformity revisions must be consistent with federal conformity
regulations that the CAA required the EPA to promulgate. The EPA
believes it is reasonable to interpret the conformity requirements as
not applying for purposes of evaluating the redesignation request under
section 107(d). The rationale for this is based on a combination of two
factors. First, the requirement to submit SIP revisions, to comply with
the conformity provision of the CAA continues to apply to areas after
redesignation to attainment, since such areas would be subject to a
section 175A maintenance plan. Second, EPA's federal conformity rules
require the performance of conformity analyses in the absence of
federally approved state rules. Therefore, because areas are subject to
the conformity requirements regardless of whether they are redesignated
to attainment and must implement conformity under federal rules if
state rules are not yet approved, the EPA believes it is reasonable to
view these requirements as not applying for purposes of evaluating a
redesignation request. Consequently, EPA may approve the ozone
redesignation request for the Portland Area without a fully approved
conformity SIP. See Detroit, Michigan, carbon monoxide redesignation
published on June 30, 1999 (64 FR 35017), Cleveland-Akron-Lorain ozone
redesignation published on May 7, 1996 (61 FR 20458), and Tampa,
Florida, published on December 7, 1995 (60 FR 52748). EPA did approve
the State of Maine's general conformity SIP on September 23, 1997 (62
FR 49608). Wall v. EPA, 265 F. 3d 426, 438-440 (6th Cir. 2001).
By proposing approval of the maintenance plan for the Portland
Area, EPA is also proposing to approve the 2012 Motor Vehicle Emissions
Budgets (MVEB) and find them adequate for maintenance of the one-hour
ozone NAAQS. The proposed Year 2012 Motor Vehicle Emissions Budgets are
16.654 tons per summer weekday for volatile organic compounds, and
26.450 tons per summer day for oxides of nitrogen. Upon promulgation of
the final approval of the maintenance plan for the Portland Area, the
MVEB's for both VOC and NOX contained in the plan shall be
the applicable budgets that must be used for purposes of demonstrating
transportation conformity. These budgets shall replace the VOC budget
of the 15% plan as well as the so-called ``NOX Build/No
Build Test'' currently being used to demonstrate transportation
conformity in the Portland Area.
With regard to the section 182 requirements, the Portland Area is
classified as moderate ozone nonattainment and therefore, the section
182(b) requirements apply. In accordance with the September 17, 1993
EPA guidance memorandum, the requirements which came due prior to the
submission of the request to redesignate the area must be fully
approved into the SIP before or at the time of the request to
redesignate the area to attainment. Table 1 below contains the control
programs being relied on in Maine's SIP, including the section 182(b)
requirements that the Portland Area must meet. As detailed in Table 1,
below, EPA has determined that Maine's SIP meets all the relevant
requirements under section 182. Thus, EPA proposes to find that the
Maine SIP for the Portland Area is fully approved and has met all
applicable requirements under section 110 and Title I, Part D of the
Act.
Table 1.--Control Measures in the Portland Ozone Nonattainment Area
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Name of control measure Type of measure Approval status
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On-board refueling vapor recovery....... Federal Rule......................... Promulgated at 40 CFR 86.
Federal motor vehicle control program... Federal Rule......................... Promulgated at 40 CFR 86.
Federal non-road heavy duty diesel Federal Rule......................... Promulgated at 40 CFR 89.
engines.
Federal non-road gasoline engines....... Federal Rule......................... Promulgated at 40 CFR 90.
Automotive Refinishing.................. Federal Rule......................... Promulgated at 40 CFR 59,
subpart B.
Consumer & commercial products.......... Federal Rule......................... Promulgated at 40 CFR 59,
subpart C.
AIM Surface Coatings.................... Federal Rule......................... Promulgated at 40 CFR 59,
subpart D.
Contingency Measures.................... Section 172(c)(9) CAA Requirement.... Not applicable based on the
area attaining the NAAQS.
Base Year Emissions Inventory........... Section 182 CAA Requirement.......... SIP approved (62 FR 9081; 2/28/
97).
Emissions Statements.................... Section 182 CAA Requirement.......... SIP approved (60 FR 2524; 1/10/
95).
New Source Review....................... Section 182 CAA Requirement.......... SIP approved (61 FR 5690; 2/14/
96).
15% VOC Reduction Plan and Attainment Section 182 CAA Requirement.......... Not applicable based on the
Demonstration. area attaining the NAAQS.
VOC RACT pursuant to sections Section 182 CAA Requirement.......... SIP approved (57 FR 3046; 2/13/
182(a)(2)(A) and 182(b)(2)(B) of CAA. 92) (58 FR 15281; 3/22/93) (59
FR 31154; 6/17/94) (60 FR
33730; 6/29/95).
VOC RACT pursuant to sections Section 182 CAA Requirement.......... SIP approved (65 FR 20749; 4/18/
182(b)(2)(A) and (C) of CAA. 00) (67 FR 35439; 5/20/02).
NOX RACT................................ Section 182 CAA Requirement.......... SIP approved at 40 CFR
52.1020(c)(46).
Vehicle inspection and maintenance Ozone Transport Region Requirement... SIP approved (66 FR 1871; 1/10/
program. 01).
[[Page 58556]]
Stage II Vapor Recovery................. Ozone Transport Region Requirement... SIP approved (61 FR 53636; 10/
15/96).
Low RVP Gasoline........................ State Initiative..................... SIP approved (67 FR 10099; 3/6/
02).
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3. The Improvement in Air Quality Must Be Due to Permanent and
Enforceable Reductions in Emissions
The improvement in air quality must be due to permanent and
enforceable reductions in emissions resulting from the SIP, federal
measures, and other state adopted measures. The improvement in air
quality in the Portland Area is due to emissions reductions from
reductions in point, stationary, area, and mobile sources. Point source
reductions are due to implementation of RACT in federally enforceable
rules, as well as additional NOX controls implemented in
upwind areas. Additional stationary area source controls were
implemented for the following categories: automobile refinish coatings,
consumer products, architectural and industrial maintenance coatings,
municipal solid waste landfills, and stage II vapor recovery. Several
programs were implemented to reduce highway vehicle emissions, such as
the Federal Motor Vehicle Control Program (FMVCP), a Portland-specific
summertime gasoline 7.8 psi volatility limit, and a motor vehicle
inspection and maintenance program. Nonroad source programs include
federal rules for large and small compression-ignition engines, small
spark-ignition engines, and recreation spark-ignition marine engines.
Thus, EPA proposes to find that Maine has satisfied the criteria of
section 107(d)(3)(E) that the improvement in air quality must be due to
permanent and enforceable reductions in emissions resulting from the
SIP, federal measures, and other state adopted measures.
4. The Area Must Have a Fully Approved Maintenance Plan Meeting the
Requirements of Section 175A
Section 175A of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
The maintenance plan is a SIP revision which provides for maintenance
of the relevant NAAQS in the area for at least 10 years after
redesignation. The EPA memorandum, dated September 4, 1992 from John
Calcagni, provides additional guidance on the required content of a
maintenance plan. An ozone maintenance plan should address the
following five areas: the attainment emissions inventory, maintenance
demonstration, monitoring network, verification of continued attainment
and a contingency plan. The attainment emissions inventory identifies
the emissions level in the area which is sufficient to attain the 1-
hour ozone NAAQS, and includes emissions during the time period which
had no monitored violations. Maintenance is demonstrated by showing
that future emissions will not exceed the level established by the
attainment inventory. Provisions for continued operation of an
appropriate air quality monitoring network are to be included in the
maintenance plan. The state must show how it will track and verify the
progress of the maintenance plan. Finally, the potential contingency
measures ensure prompt correction of any violation of the ozone
standard.
The Maine DEP included a 1999 emissions inventory as the attainment
inventory. The maintenance plan provides emissions estimates from 1999
to 2012 for VOCs and NOX (see Tables 2 and 3, below). The
emissions in the Portland Area are projected to decrease from the 1999
levels. The results of the analysis show that the Portland Area is
expected to maintain the air quality standard for at least 10 years
into the future after redesignation.
Table 2.--VOC Emissions From 1999 to 2012 in the Portland Area
----------------------------------------------------------------------------------------------------------------
Source category 1999 attainment 2005 projected 2012 projected
----------------------------------------------------------------------------------------------------------------
Point sources............................................ 4.307 4.588 4.896
Area Sources............................................. 25.422 29.449 35.544
Mobile Sources........................................... 63.783 45.437 31.67
-------------------
Totals............................................... 93.512 79.474 71.11
----------------------------------------------------------------------------------------------------------------
Table 3.--NOX Emissions From 1999 to 2012 in the Portland Area
----------------------------------------------------------------------------------------------------------------
Source category 1999 attainment 2005 projected 2012 projected
----------------------------------------------------------------------------------------------------------------
Point sources............................................ 15.0 14.9 14.9
Area Sources............................................. 1.768 1.724 1.685
Mobile Sources........................................... 85.978 66.356 41.718
-------------------
Totals............................................... 102.746 82.98 58.303
----------------------------------------------------------------------------------------------------------------
The State of Maine's plan commits to continue the operation of the
monitors in the Portland Area in accordance with 40 CFR part 58. The
State of Maine's plan also states that it will track maintenance by
reviewing the air quality data during the maintenance period. As stated
earlier, the plan also includes motor vehicle emission budgets to be
used for transportation conformity purposes for the Portland Area upon
the effective date of the final approval of the maintenance plan.
Section 175A(b) of the CAA also requires the Maine DEP to submit a
revision of the SIP eight years after the original redesignation
request is
[[Page 58557]]
approved to provide for maintenance of the NAAQS for an additional 10
years following the first 10 year period. The State of Maine recognizes
that it is required to submit such a SIP revision 8 years after this
request and maintenance plan are approved.
The contingency plan for the Portland Area consists of attainment
tracking and contingency measures to be implemented in the event that a
violation of the ozone NAAQS occurs in the Portland Area. Attainment
tracking will be utilized in the Portland Area. The state will use air
quality monitoring using the existing ozone monitoring network, and if
a violation of the one-hour NAAQS is monitored at any ozone site within
the Portland Area, the state will inform EPA that a violation has
occurred, review data for quality assurance, and conduct a technical
analysis including an analysis of meteorological conditions leading up
to and during the exceedences contributing to the violation to
determine local culpability. The state will submit a preliminary
analysis to the EPA and afford the public the opportunity for review
and comment. The State will also solicit and consider EPA's technical
advice and analysis before making a final determination on the cause of
the violation. The trigger date will be the date that the state
certifies to the EPA that the air quality data are quality assured, and
that the exceedences contributing to the violation are determined not
to be attributable to transport from upwind areas which will be no
later than 180 days after the violation is monitored. In the event EPA
disagrees with the state's final determination and believes that the
violation was not attributable to transport, but to the Portland Area's
own emissions, authority exists under section 179(a) and 110(k), to
require the area to implement contingency measure, and section 107, to
redesignate the area to nonattainment.
If the triggering event, a violation of the ozone NAAQS determined
not to be attributable to transport from upwind areas, is confirmed,
the state will implement one or more appropriate contingency measures.
The contingency measure(s) will be selected by the Governor or the
Governor's designee within 6 months of a triggering event, (i.e., a
monitored one-hour ozone NAAQS violation determined not to be
attributable to transport). Possible contingency measures are listed
below.
Maine will utilize the model rules developed by the Ozone Transport
Commission (OTC) as its principal contingency measures. In December
1999, EPA informed several jurisdictions in the Ozone Transport Region
that their State Implementation Plans would not provide sufficient
emission reductions to attain the one-hour ozone standard by 2005 and
2007. EPA indicated it would grant states additional time to implement
new measures if those states pursued regional strategies to control
ozone and its precursors. Within this context, the OTC agreed to begin
addressing the emission shortfalls by developing model rules for its
member states. These model rules will provide a consistent framework
for air pollution regulation throughout the region.
On March 28, 2001, the OTC approved final model rules for the
following source categories: consumer products; portable fuel
containers; architectural and industrial maintenance coatings; solvent
cleaning operations; mobile equipment repair and refinishing; and
additional nitrogen oxides controls for industrial boilers, cement
kilns, stationary reciprocating engines, and stationary combustion
engines. Thus, EPA proposes to find that the contingency measures meet
the provisions of the Act.
VIII. What Is the Attainment Emission Inventory and Why Is EPA
Proposing To Approve It?
An attainment emissions inventory is an inventory of the ozone
precursors VOC and NOX prepared for a typical summer day
during a year that coincides with one of the years that the requesting
area monitored attainment of the one hour ozone standard. As discussed
elsewhere in this notice, the Maine DEP recorded air quality monitoring
data during 1998, 1999 and 2000 that indicated the Portland Area met
the one hour ozone standard during that time-frame. Therefore, Maine
DEP prepared a 1999 emission inventory for the Portland ozone
nonattainment area, and submitted it as part of its July 9, 2002
redesignation request for this area. This portion of the notice
discusses our review of the inventory, and is divided into three parts:
(1) Background Information, (2) Summary of 1999 Inventory, and (3)
Results of our Review.
1. Background Information
Under the CAA as amended in 1990, states have the responsibility to
inventory emissions contributing to nonattainment of a NAAQS, to track
these emissions over time, and to ensure that control strategies are
being implemented that reduce emissions and move areas towards
attainment. Further information on emission inventories and their
purpose can be found in the document, ``Emission Inventory Requirements
for Ozone State Implementation Plans,'' U.S. Environmental Protection
Agency, Office of Air Quality Planning and Standards, Research Triangle
Park, North Carolina, March 1991, and in a September 4, 1992 memorandum
from John Calcagni, Director of EPA's Air Quality Management Division,
entitled, ``Procedures for Processing Requests to Redesignate Areas to
Attainment.'' Copies of these two documents are available from EPA-New
England at the address listed in the address section of this notice.
Those states containing ozone nonattainment areas classified as
marginal to extreme were required under section 182(a)(1) of the CAA to
submit a 1990 base year emissions inventory of ozone precursors by
November 15, 1992. Maine DEP submitted a 1990 base year emission
inventory to EPA, which we approved by a direct final rule published in
the Federal Register on February 28, 1997 (62 FR 9081). On July 9,
2002, Maine DEP submitted a proposed redesignation request to EPA for
the Portland Area that contained a proposed 1999 attainment inventory
for the area. Our analysis of the 1999 inventory appears below.
2. Summary of 1999 Inventory
The Clean Air Act requires states to observe certain procedural
requirements in developing emission inventory submissions to the EPA.
Section 110(a)(2) of the Clean Air Act provides that each emission
inventory submitted by a state must be adopted after reasonable notice
and public hearing.\3\ On August 1, 2002, the Maine DEP held a public
hearing on the state's proposed redesignation request for the Portland
Area, which included the 1999 emission estimate of ozone precursors.
---------------------------------------------------------------------------
\3\ Also section 172(c)(7) of the Clean Air Act requires that
plan provisions for nonattainment areas meet the applicable
provisions of section 110(a)(2).
---------------------------------------------------------------------------
EPA reviewed Maine DEP's 1999 emission inventory for the Portland
Area to determine whether it conformed with our guidance on preparation
of stationary point, area, on-road mobile, off-road mobile and biogenic
emission estimates. Each of these inventory sections is discussed
below.
Point Sources: Maine DEP considers any facility that emits 10 tons
per year (tpy) or more of VOC or NOX a point source of
emissions, and estimates emissions for such facilities primarily by
using information contained in emission statement questionnaire sent
[[Page 58558]]
annually to these facilities. The questionnaires require the reporting
of various process related parameters such as fuel and raw material
consumption, and pollution control equipment efficiency. The DEP uses
this information in conjunction with emission factors and stack test
data to calculate emissions. The Maine DEP verifies the information
reported on the questionnaires during inspections conducted at the
facilities.
Area Sources: Maine DEP used EPA recommended procedures to estimate
emissions from area sources, which are essentially small facilities
which in their aggregate may emit substantial emissions, but do not do
so individually (e.g., gasoline stations, automobile refinishers, etc).
Our recommended techniques generally suggest use of per capita or per
employee emission factors in conjunction with levels of activity to
determine approximate levels of emissions from these sources. Emissions
from area sources contribute substantially to total VOC emissions, but
not much to total NOX emissions.
Non-road mobile sources: Non-road mobile sources are engines that
operate in a wide variety of applications, including farm and
construction equipment, lawn and garden equipment, marine vessels,
aircraft, and locomotives. Maine DEP used EPA's draft non-road air
emission estimation model to determine emissions from most equipment
types in this sector. This model estimates emissions for all non-road
equipment types except locomotives, aircraft, and commercial marine
vessels, so Maine DEP calculated emissions from these sources
separately. Although this model is still draft, it presents a better
means of estimating emissions for this sector than previous guidance
issued by EPA in 1991.
On-road mobile sources: Maine DEP calculated emissions from this
sector using data on vehicle miles traveled (VMT) collected by the
State's Department of Transportation (Maine-DOT), and the EPA's MOBILE6
emission factor model. Maine-DOT used a variety of means to estimate
VMT in Maine, including use of traffic counts and household and mass
transit surveys. Maine DEP used a combination of state specific and
national default data as inputs to the MOBILE6 model.
Biogenic Sources: Biogenic sources are naturally occurring
emissions from various forms of plant life. Maine DEP used the EPA's
biogenic emission information system (BEIS) to calculate these
emissions, which are primarily VOC emissions. Maine DEP used data from
the National Weather Service as input to the BEIS model.
3. Results of Our Review
Maine DEP has submitted a complete inventory for the Portland Area
containing point, area, on-road mobile, non-road mobile, and biogenic
source data, and accompanying documentation of how these estimates were
prepared. The September 4, 1992 memorandum from John Calcagni
referenced above recommends that ozone attainment inventories consist
of typical summer day estimates of VOC and NOX emissions
prepared in accordance with the current inventory guidance available at
the time the attainment inventory is submitted. The current inventory
guidance is the body of work produced by the Emissions Inventory
Improvement Program (EIIP), which is a joint effort between EPA and
representatives from various state environmental agencies. The emission
estimates prepared by the Maine DEP are presented in table 4:
Table 4.--1999 Ozone Seasonal Emissions in Tons Per Day
------------------------------------------------------------------------
VOC NOX
------------------------------------------------------------------------
Point................................................. 3.70 15.0
Area.................................................. 26.0 1.8
On-road............................................... 36.8 65.0
Off-road.............................................. 27.0 20.9
Biogenic.............................................. 197.5
----------
Total......................................... 291.0 102.7
------------------------------------------------------------------------
Maine DEP has prepared an emissions inventory that meets the
recommendations outlined in the EIIP guidance for a comprehensive,
accurate, and current inventory of actual ozone precursor emissions for
the Portland nonattainment area. EPA proposes to fully approve the 1999
ozone emission inventory submitted by Maine for the Portland
nonattainment area. The calculations and assumptions used to develop
this inventory are explained in Maine DEP's submittal and are available
in the record supporting this proposal.
IX. What Action Is EPA Proposing in the Alternative To Approving the
Redesignation Request, Maintenance Plan and 1999 Attainment Inventory?
Under section 107(d)(1)(C) of the CAA, each ozone area designated
nonattainment for the 1-hour ozone standard prior to enactment of the
1990 CAA amendments, such as the Portland Area, was designated
nonattainment by operation of law upon enactment of the 1990
amendments. Under section 181(a) of the Act, each ozone area designated
nonattainment under section 107(d) was also classified by operation of
law as ``marginal,'' ``moderate,'' ``serious,'' ``severe,'' or
``extreme,'' depending on the severity of the area's air quality
problem. The design value for an area, which characterizes the severity
of the air quality problem, is represented by the highest design value
at any individual monitoring site (i.e., the highest of the fourth
highest 1-hour daily maximums in a given three-year period with
complete monitoring data). Ozone nonattainment areas with design values
between .138 and .160, such as the Portland area, were classified as
moderate.
In addition, under section 182(b)(1)(A) of the CAA, states
containing areas classified as moderate nonattainment were required to
submit SIPs to provide for certain controls, to show progress toward
attainment, and to provide for attainment of the ozone standard as
expeditiously as practicable but no later than November 15, 1996.
Moderate area SIP requirements are found primarily in section 182(b) of
the CAA.
With regard to reclassification for failure to attain, section
182(b)(2)(A) of the Clean Air Act provides in relevant part:
Within 6 months following the applicable attainment date
(including any extension thereof) for an ozone nonattainment area,
the Administrator shall determine, based on the area's design value
(as of the attainment date), whether the area attained the standard
by that date. * * * [A]ny area that the Administrator finds has not
attained the standard by that date shall be reclassified by
operation of law in accordance with table 1 of subsection (a) to the
higher of --
(i) the next higher classification for the area, or
(ii) the classification applicable to the area's design value as
determined at the time of the notice required under subparagraph
(B).
Furthermore, section 182(b)(2)(B) of the Act provides that:
The Administrator shall publish a notice in the Federal
Register, no later than 6 months following the attainment date,
identifying the area that the Administrator has determined under
subparagraph A as having failed to attain and identifying the
reclassification, if any, described under subparagraph (a).
Section 182(b)(2) of the Act requires EPA to determine whether an
ozone nonattainment area attained the one-hour ozone NAAQS by its
statutory attainment date, or any extension provided for in the Act. If
EPA is unable to approve Maine's redesignation request based on current
attainment in the Portland Area, we propose in the alternative to find
the Portland Area did not attain as of its required attainment date,
November 15, 1997.
[[Page 58559]]
1. Proposed Determination of Nonattainment as of November 15, 1997
Table 5 lists the number of exceedances of the 1-hour ozone NAAQS
for each monitor in the Portland nonattainment area for the period
1995-1997. The ozone design value for each monitor is also listed for
the same period. For the three year period ending in 1997 (i.e., 1995-
1997), the design value for the Portland Area was 0.126 ppm. Therefore,
if EPA does not approve a redesignation for Portland pursuant to
section 107(d)(3) of the CAA, EPA proposes to find that the Portland
Area did not attain the 1-hour NAAQS by its extended attainment date of
November 15, 1997, the statutory attainment deadline for this area.\4\
---------------------------------------------------------------------------
\4\ EPA granted a one-year extension of the attainment date for
the Portland Area pursuant to Section 181(a)(5) of the CAA on April
16, 1997 (62 FR 18526).
Table 5.--Air Quality Monitoring Data for the Portland Area 1995-1997
----------------------------------------------------------------------------------------------------------------
Annual
Total average Design
Site ID Monitoring site exceedances expected value
1995-1997 exceedances (ppm)
----------------------------------------------------------------------------------------------------------------
23-005-2003........................... Cape Elizabeth.................... 3 1.0 0.121
23-023-0003........................... Phippsburg........................ 4 1.5 0.125
23-031-2002........................... Kennebunkport..................... 4 1.4 0.125
23-031-3002........................... Kittery........................... 4 1.9 0.126
----------------------------------------------------------------------------------------------------------------
* Only monitors with three complete years of data were used for these calculations.
2. Reclassification
Section 181(b)(2)(A) of the CAA requires that, when an area is
reclassified for failure to attain, its reclassification be the higher
of the next higher classification or the classification applicable to
the area's ozone design value at the time the notice of
reclassification is published in the Federal Register. Section
181(b)(2)(A)(ii) provides that no area shall be reclassified as
Extreme. The Portland Area is a moderate nonattainment area. Its design
value at the time of its attainment date, November 15, 1997, was 0.126
ppm, and based on preliminary ozone data from 2002, that have not yet
been quality-assured, its current design value appears to be 0.126 ppm.
Therefore, if EPA finalizes the finding of failure to attain, the
Portland Area would be reclassified, by operation of law, as a serious
nonattainment area.
Section 182(i) states that the Administrator may adjust applicable
deadlines (other than attainment dates) to the extent such adjustment
is necessary or appropriate to assure consistency for submission of the
new requirements applicable to an area which has been reclassified. An
area reclassified to serious is required to submit SIP revisions
addressing the serious area requirements for the 1-hour ozone NAAQS in
section 182(c).
If the Portland Area is reclassified to serious, EPA must also
address the schedule by which Maine is required to submit SIP revisions
meeting the serious area requirements. EPA is proposing to require that
the state submit SIP revisions containing all the serious area
requirements no later than 12 to 18 months after final action on the
reclassification. EPA is soliciting comments pertaining to the time
frame for SIP submission. This submission would include an attainment
demonstration and all additional measures required by section 182(c) of
the CAA. The additional measures include, but are not limited to, the
following: (1) Stage II vapor recovery in the nonattainment area, (2)
the new source review offset requirements would increase from 1.15 to 1
to 1.2 to 1, (3) the definition of a major source of NOX
would decrease from 100 tons per year to 50 tons per year,\5\ and (4)
additional rate of progress requirements.
---------------------------------------------------------------------------
\5\ Note that Maine is the Ozone Transport Region and as such,
the definition of a major source for volatile organic compounds is
already 50 tons per year.
---------------------------------------------------------------------------
Where an attainment date has already passed and thus is impossible
to meet, EPA believes that the Administrator may adjust the date to
assure fair treatment in accordance with Congressional intent. 64 FR
13390 (March 18, 1999), 66 FR 15587-88 (March 19, 2001). Since the
statutory attainment date of 1999 for serious areas has already passed,
EPA is proposing to require that Maine DEP submit an attainment
demonstration for the Portland Area that provides for attainment as
expeditiously as practicable. It is currently impossible for DEP to
meet the 1999 attainment deadline. Therefore, the only reasonable
course for setting an attainment date for the Portland Area is to
require Maine to develop an attainment demonstration that provides for
attainment as expeditiously as practicable. Once Maine submits that
demonstration EPA will provide the public an opportunity to comment on
whether the date Maine selects is as expeditious as practicable. EPA is
asking for comment on how to address a new attainment date for the
Portland Area.
Finally, EPA is proposing to grant an extended effective date for
the reclassification of the Portland Area to a serious ozone
nonattainment area if EPA finalizes the proposal to find that the area
did not attain as of 1997. The approved Maine new source review (NSR)
SIP includes provisions that would automatically impose more stringent
requirements for the preconstruction permitting of major sources of
ozone precursors and major modifications to major sources once an area
in Maine is reclassified to serious pursuant to the Act. Maine's SIP
will require a higher ratio of offsets for new or increased emissions
of VOC or NOX, by automatically imposing the 1:1.2 level of
offsets for a serious areas upon redesignation. See Maine DEP Air
Pollution Control Regs. c. 100(98), c. 113(2)(c)(1) and (2), and c.
115(V)(B)(2)(b). In light of the relative scarcity of offsets for
increased emissions of VOC, facilities that must secure a NSR permit
for construction or modification in the Portland Area may face a
significant planning burden in securing the increased level of offsets
required as a result of this reclassification. Therefore, EPA believes
the regulated community needs time to prepare for compliance with this
enhanced NSR requirement. EPA is proposing and believes it is
reasonable to have an effective date of 100 days from the date of
publication to provide sources with additional time to prepare for the
impact of these new
[[Page 58560]]
requirements. See 66 FR 27036 (May 16, 2001); 67 FR 53882 (Aug. 20,
2002).
Proposed Action
EPA is proposing to determine that the Portland Area has attained
the one-hour ozone NAAQS from 1999-2001, to redesignate the Portland
Area from nonattainment to attainment of the 1-hour ozone NAAQS, and to
approve the proposed maintenance plan submitted by the State of Maine.
By proposing approval of the Portland Area maintenance plan, EPA is
also proposing to approve the year 2012 MVEBs (16.654 tons per summer
weekday for volatile organic compounds, and 26.450 tons per summer day
for oxides for nitrogen) contained in that plan as adequate for
maintenance of the ozone NAAQS and for transportation conformity
purposes. EPA also proposes to approve the proposed Portland Area 1999
attainment emission inventory into the SIP.
In the alternative, EPA is proposing to find pursuant to section
181(b)(2) that the Portland Area did not attain the 1-hour ozone NAAQS
by November 15, 1997, the attainment date for the Portland Area. If EPA
finalizes this finding and when it becomes effective, the Act requires
that the Portland Area be reclassified as a serious nonattainment area.
EPA is also taking comment on a proposed schedule for submittal of the
SIP revisions required for serious areas should the Portland Area be
reclassified. Additionally, EPA is taking comment on how to address the
new attainment date for the Portland Area and our proposal that Maine
develop an attainment demonstration that provides for attainment as
expeditiously as practicable. Finally, EPA is proposing to grant an
extended effective date for the determination of nonattainment and
reclassification, to give time for facilities to prepare for compliance
with new construction permitting requirements.
EPA is soliciting public comments on the issues discussed in this
notice. These comments will be considered before taking final action.
Interested parties may participate in the Federal rulemaking procedure
by submitting written comments to the EPA Regional office listed in the
ADDRESSES section of this notice. Interested parties should submit
comments by October 17, 2002.
This redesignation is being proposed under a procedure called
parallel processing, whereby EPA proposes rulemaking action
concurrently with the state's procedures for amending its regulations.
If the proposed maintenance plan is substantially changed, EPA will
evaluate those changes and may publish another notice of proposed
rulemaking. If no substantial changes are made, EPA will publish a
Final Rulemaking Notice on the revisions. Before EPA can finally
approve this plan Maine must finally adopt the SIP revision and submit
it formally to EPA for incorporation into the SIP.
Administrative Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. The Agency
has determined that the determination of nonattainment would result in
none of the effects identified in section 3(f) of the Executive Order.
Under section 181(b)(2) of the CAA, the proposed determination of
nonattainment is based upon air quality considerations and the
resulting reclassifications must occur by operation of law. It does
not, in and of itself, impose any new requirements on any sectors of
the economy. In addition, because the statutory requirements are
clearly defined with respect to the differently classified areas, and
because those requirements are automatically triggered by
classifications that, in turn, are triggered by air quality values,
determinations of nonattainment and reclassification cannot be said to
impose a materially adverse impact on state, local, or tribal
governments or communities. For this reason, the proposed determination
of nonattainment and reclassification is also not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001).
Redesignation of an area to attainment under section 107(d)(3)(E) of
the CAA does not impose any new requirements on small entities.
Redesignation is an action that affects the status of a geographical
area and does not impose any new regulatory requirements on sources.
This proposal merely approves state law as meeting federal requirements
and imposes no additional requirements beyond those imposed by state
law. Accordingly, the Administrator certifies that this rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et
seq.). Determinations of nonattainment and the resulting
reclassification of nonattainment areas pursuant to section 181(b)(2)
of the CAA do not in and of themselves create any new requirements.
Instead, this proposed rulemaking only makes a factual determination,
and does not directly regulate any entities. See 62 FR 60001, 60007-8,
and 60010 (November 6, 1997) for additional analysis of the RFA
implications of attainment determinations. Therefore, pursuant to 5
U.S.C. 605(b), certify that today's proposed action does not have a
significant impact on a substantial number of small entities within the
meaning of those terms for RFA purposes. Because this rule approves
pre-existing requirements under state law and does not impose any
additional enforceable duty beyond that required by state law, it does
not contain any unfunded mandate or significantly or uniquely affect
small governments, as described in the Unfunded Mandates Reform Act of
1995 (UMRA) (Public Law 104-4). Redesignation of an area to attainment
under section 107(d)(3)(E) of the CAA does not impose any new
requirements on small governments. Redesignation is an action that
affects the status of a geographical area and does not impose any new
regulatory requirements on sources. EPA believes, as discussed above,
that the finding of nonattainment is a factual determination based upon
air quality considerations and that the resulting reclassification of
the area must occur by operation of law. Thus, the finding does not
constitute a Federal mandate, as defined in section 101 of the UMRA,
because it does not impose an enforceable duty on any entity.
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have federalism
implications because it does not have substantial direct effects on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999), because it merely approves a state rule
implementing a federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997),
[[Page 58561]]
because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
state to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Nitrogen dioxide,
Ozone, Reporting and recordkeeping requirements, Volatile organic
compounds.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 9, 2002.
Robert W. Varney,
Regional Administrator, EPA New England.
[FR Doc. 02-23589 Filed 9-16-02; 8:45 am]
BILLING CODE 6560-50-P