[Federal Register Volume 60, Number 108 (Tuesday, June 6, 1995)]
[Rules and Regulations]
[Pages 29763-29766]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13812]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[A-1-FRL-5216-9]


Determination of Attainment of Ozone Standard for Lewiston-Auburn 
and Knox and Lincoln Counties, Maine Ozone Nonattainment Areas and 
Determination Regarding Applicability of Certain Reasonable Further 
Progress and Attainment Demonstration Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is determining, through direct final procedure, that 
the Lewiston-Auburn and the Knox and Lincoln Counties moderate ozone 
nonattainment areas in Maine have attained the National Ambient Air 
Quality Standard (NAAQS) for ozone. These determinations are based upon 
three years of complete, quality assured ambient air monitoring data 
for the years 1992-94 that demonstrate that the ozone NAAQS has been 
attained in both areas. On the basis of these determinations, EPA is 
also determining that certain reasonable further progress and 
attainment demonstration requirements, along with certain other related 
requirements, of Part D of Title 1 of the Clean Air Act are not 
applicable to these areas for so long as these areas continue to attain 
the ozone NAAQS. In the proposed rules section of this Federal 
Register, EPA is proposing these determinations and soliciting public 
comment on them. If adverse comments are received on this direct final 
rule, EPA will withdraw this final rule and address these comments in a 
final rule on the related proposed rule which is being published in the 
proposed rules section of this Federal Register.

DATES: This action will be effective July 21, 1995 unless notice is 
received by July 6, 1995 that any person wishes to submit adverse or 
critical comments. If the effective date is delayed, timely notice will 
be published in the Federal Register.

ADDRESSES: Comments may be mailed to Susan Studlien, Acting Director, 
Air, Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region I, JFK Federal Bldg., Boston, MA 02203. 
Copies of the material relevant to this action are available for public 
inspection during normal business hours, by appointment at the Air, 
Pesticides and Toxics [[Page 29764]] Management Division, U.S. 
Environmental Protection Agency, Region I, One Congress Street, 10th 
floor, Boston, MA and the Bureau of Air Quality Control, Department of 
Environmental Protection, 71 Hospital Street, Augusta, ME 04333.

FOR FURTHER INFORMATION CONTACT: Richard P. Burkhart, Air, Pesticides 
and Toxics Management Division, U.S. Environmental Protection Agency, 
Region I, JFK Federal Bldg., Boston, MA 02203. Phone: 617-565-3244.

SUPPLEMENTARY INFORMATION:

I. Background

    Subpart 2 of Part D of Title I of the Clean Air Act (``CAA'') 
contains various air quality planning and state implementation plan 
(``SIP'') submission requirements for ozone nonattainment areas. 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 (i.e., attainment of the 
NAAQS demonstrated with three consecutive years of complete, quality 
assured air quality monitoring data). As described below, EPA has 
previously interpreted the general provisions 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 
Seitz 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.
    First, with respect to RFP, section 171(1) states that, for 
purposes of part D of Title I, RFP ``means such annual incremental 
reductions in emissions of the relevant air pollutant as are required 
by this part or may reasonably be required by the Administrator for the 
purpose of ensuring attainment of the applicable national ambient air 
quality standard by the applicable date.'' Thus, whether dealing with 
the general RFP requirement of section 172(c)(2), or the more specific 
RFP requirements of subpart 2 for classified ozone nonattainment areas 
(such as the 15 percent plan requirement of section 182(b)(1)), the 
stated purpose of RFP is to ensure attainment by the applicable 
attainment date.1 If an area has in fact attained the standard, 
the stated purpose of the RFP requirement will have already been 
fulfilled and EPA does not believe that the area need submit revisions 
providing for the further emission reductions described in the RFP 
provisions of section 182(b)(1).

    \1\ EPA notes that paragraph (1) of subsection 182(b) is 
entitled ``PLAN PROVISIONS FOR REASONABLE FURTHER PROGRESS'' and 
that subparagraph (B) of paragraph 182(c)(2) is entitled 
``REASONABLE FURTHER PROGRESS DEMONSTRATION,'' thereby making it 
clear that both the 15 percent plan requirement of section 182(b)(1) 
and the 3 percent per year requirement of section 182(c)(2) are 
specific varieties of RFP requirements.
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    EPA notes that it took this view with respect to the general RFP 
requirement of section 172(c)(2) in the General Preamble for the 
Interpretation of Title I of the Clean Air Act Amendments of 1990 (57 
FR 13498 (April 16, 1992)), and it is now extending that interpretation 
to the specific provisions of subpart 2. In the General Preamble, EPA 
stated, in the context of a discussion of the requirements applicable 
to the evaluation of requests to redesignate nonattainment areas to 
attainment, that the ``requirements for RFP will not apply in 
evaluating a request for redesignation to attainment since, at a 
minimum, the air quality data for the area must show that the area has 
already attained. Showing that the State will make RFP towards 
attainment will, therefore, have no meaning at that point.'' (57 FR at 
13564.) 2

    \2\ See also ``Procedures for Processing Requests to Redesignate 
Areas to Attainment,'' from John Calcagni, Director, Air Quality 
Management Division, to Regional Air Division Directors, September 
4, 1992, at page 6 (stating that the ``requirements for reasonable 
further progress * * * will not apply for redesignations because 
they only have meaning for areas not attaining the standard'') 
(hereinafter referred to as ``September 1992 Calcagni memorandum'').
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    Second, with respect to the attainment demonstration requirements 
of section 182(b)(1) an analogous rationale leads to the same result. 
Section 182(b)(1) requires 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.'' As with the RFP requirements, if an area 
has in fact monitored attainment of the standard, EPA believes 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, as 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 the maintenance of the NAAQS and the development of a 
maintenance plan under section 175A.
    Similar reasoning applies to the contingency measure requirements 
of section 172(c)(9). EPA has previously interpreted the contingency 
measure requirement 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 at 13564; see also September 1992 Calcagni memorandum at 
page 6.) As the section 172(c)(9) contingency measures are linked with 
the RFP requirements of section 182(b)(1), the requirement no longer 
applies once an area has attained the standard.
    EPA emphasizes that the lack of a requirement to submit the SIP 
revisions discussed above exists only for as long as an area designated 
nonattainment continues to attain the standard. If EPA subsequently 
determines that such an area has violated the NAAQS, the basis for the 
determination that the area need not make the pertinent SIP revisions 
would no longer exist. The EPA would notify the State of that 
determination and would also provide notice to the public in the 
Federal Register. Such a determination would mean that the area would 
have to address the pertinent SIP requirements within a reasonable 
amount of time, which EPA would establish taking into account the 
individual circumstances surrounding the particular SIP submissions at 
issue. Thus, a determination that an area need not submit one of the 
SIP submittals amounts to no more than a suspension of the requirement 
for so long as the area continues to attain the standard.
    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 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).
    The determinations that are being made with this Federal Register 
notice [[Page 29765]] are not equivalent to the redesignation of the 
area to attainment. Attainment of the ozone NAAQS is only one of the 
criteria set forth in section 107(d)(3)(E) that must be satisfied for 
an area to be redesignated to attainment. To be redesignated the state 
must submit and receive full approval of a redesignation request for 
the area that satisfies all of the criteria of that section, including 
the requirement of a demonstration that the improvement in the area's 
air quality is due to permanent and enforceable reductions and the 
requirements that the area have a fully-approved SIP meeting all of the 
applicable requirements under section 110 and Part D and a fully-
approved maintenance plan.
    Furthermore, the determinations made in this notice do 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. EPA has authority under sections 
110(a)(2)(A) and 110(a)(2)(D) to require such emission reductions if 
necessary and appropriate to deal with transport situations.

II. Analysis of Air Quality Data

    The 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 Lewiston-Auburn ozone nonattainment area and 
the Knox and Lincoln Counties ozone nonattainment area in the State of 
Maine from 1992 through the present time. On the basis of that review, 
EPA has concluded that these areas attained the ozone standard during 
the 1992-94 period and continues to attain the standard at this time. 
The ozone air quality data for the Lewiston-Auburn ozone nonattainment 
area shows no exceedances of the National Ambient Air Quality Standards 
since 1992. The ozone air quality data for the Knox and Lincoln 
Counties ozone nonattainment area shows only one exceedance of the 
National Ambient Air Quality Standards since 1992. Thus, these areas 
are no longer recording violations of the air quality standard for 
ozone. A more detailed summary of the ozone monitoring data for these 
areas is provided in the EPA technical support document dated May 17, 
1995.

III. Final Action

    EPA determines that the Lewiston-Auburn ozone nonattainment area 
and the Knox and Lincoln Counties ozone nonattainment area have 
attained the ozone standard and continue to attain the standard at this 
time. As a consequence of EPA's determination that the Lewiston-Auburn 
area and the Knox and Lincoln Counties area have attained the ozone 
standard, the requirements of section 182(b)(1) concerning the 
submission of the 15 percent plan and ozone attainment demonstration 
and the requirements of section 172(c)(9) concerning contingency 
measures are not applicable to the area so long as the area does not 
violate the ozone standard.
    In addition, Maine currently does not have conforming 
transportation improvement programs (TIPs) and transportation plans in 
the areas discussed in this notice. The previous conforming TIPs and 
plans lapsed because new conformity determinations using EPA's 
conformity transitional criteria (40 CFR Sec. 51.448) were required 
within one year of November 15, 1993. Because Maine had not submitted 
complete 15% plans, it was not able to meet this criteria. Because EPA 
is determining in this action that the Lewiston-Auburn area and Knox 
and Lincoln Counties area have attained the ozone standard and 
therefore are not required to have 15% plans, conformity can be 
restored once new conformity determinations by the appropriate 
metropolitan planning organizations and the United States Department of 
Transportation have been completed using 40 CFR Sec. 51.410. Because 
15% plans are no longer required, the state no longer has to meet the 
requirements of 40 CFR 51.428, 51.430 and 51.432.
    EPA emphasizes that these determinations are contingent upon the 
continued monitoring and continued attainment and maintenance of the 
ozone NAAQS in these affected areas. If a violation of the ozone NAAQS 
is monitored in the Lewiston-Auburn area or the Knox and Lincoln 
Counties area (consistent with the requirements contained in 40 CFR 
Part 58 and recorded in AIRS), EPA will provide notice to the public in 
the Federal Register. Such a violation would mean that the applicable 
area would thereafter have to address the requirements of section 
182(b)(1) and section 172(c)(9) since the basis for the determination 
that they do not apply would no longer exist.
    As a consequence of the determinations that these areas in Maine 
have attained the ozone standard and that the reasonable further 
progress and attainment demonstration requirements of section 182(b)(1) 
do not presently apply, the sanctions clock for these two areas started 
by EPA on January 26, 1994 for the failure to submit a section 
182(b)(1) 15 percent plan and associated contingency plan is hereby 
stopped as the deficiency for which the clock was started no longer 
exists.
    Nothing in this action shall be construed as permitting or allowing 
or establishing a precedent for any future request for a revision to 
any state implementation plan. Each request for revision to the state 
implementation plan shall be considered separately in light of specific 
technical, economic, and environmental factors and in relation to 
relevant statutory and regulatory requirements.
    This action will become effective on July 21, 1995. However, if the 
EPA receives adverse comments by July 6, 1995, then the EPA will 
publish a notice that withdraws the action, and will address those 
comments in the final rule on the proposed determination of attainment 
and determination of applicability of RFP and attainment demonstrations 
which has been proposed for approval in the proposed rules section of 
this Federal Register.
    This action has been classified as a Table 2 action by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993 
memorandum from Michael H. Shapiro, Acting Assistant Administrator for 
Air and Radiation. The Office of Management and Budget exempted this 
regulatory action from Executive Order 12866 review.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities (5 U.S.C. 603 and 604). 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000. Today's determination does not create any new requirements, but 
allows suspension of the indicated requirements. Therefore, because the 
approval does not impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected.
    Under Sections 202, 203 and 205 of the Unfunded Mandates Reform Act 
of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995, 
EPA must undertake various actions in association with proposed or 
final rules that include a Federal mandate that may result in estimated 
costs of $100 million or more to the private sector, or to State, 
[[Page 29766]] local, or tribal governments in the aggregate.
    EPA's final action does not impose any federal intergovernmental 
mandate, as defined in section 101 of the Unfunded Mandates Act, upon 
the State. No additional costs to State, local, or tribal governments, 
or to the private sector, result from this action, which suspends the 
indicated requirements. Thus, EPA has determined that this final action 
does not include a mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector.
    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 August 7, 1995. 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, Nitrogen oxides, 
Ozone, Volatile organic compounds, Intergovernmental relations, 
Reporting and recordkeeping requirements.

    Dated: May 22, 1995.
John P. DeVillars,
Regional Administrator, Region I.

    Part 52, chapter 1, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

    2. Subpart U is amended by adding Sec. 52.1023 to read as follows:


Sec. 52.1023  Control strategy: Ozone.

    (a) Determination. EPA is determining that, as of July 21, 1995, 
the Lewiston-Auburn ozone nonattainment area has attained the ozone 
standard and that the reasonable further progress and attainment 
demonstration requirements of section 182(b)(1) and related 
requirements of section 172(c)(9) of the Clean Air Act do not apply to 
the area for so long as the area does not monitor any violations of the 
ozone standard. If a violation of the ozone NAAQS is monitored in the 
Lewiston-Auburn ozone nonattainment area, these determinations shall no 
longer apply.

    (b) Determination. EPA is determining that, as of July 21, 1995, 
the Knox and Lincoln Counties ozone nonattainment area has attained the 
ozone standard and that the reasonable further progress and attainment 
demonstration requirements of section 182(b)(1) and related 
requirements of section 172(c)(9) of the Clean Air Act do not apply to 
the area for so long as the area does not monitor any violations of the 
ozone standard. If a violation of the ozone NAAQS is monitored in the 
Knox and Lincoln Counties ozone nonattainment area, these 
determinations shall no longer apply.

[FR Doc. 95-13812 Filed 6-5-95; 8:45 am]
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