Federal Register, Volume 62 Issue 59 (Thursday, March 27, 1997)

[Federal Register Volume 62, Number 59 (Thursday, March 27, 1997)]
[Rules and Regulations]
[Pages 14641-14644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7628]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81

[ME048-1-6997a; FRL-5802-3]

Designation of Areas for Air Quality Planning Purposes;
Correction of Designation of Nonclassified Ozone Nonattainment Areas;
States of Maine and New Hampshire

AGENCY: United States Environmental Protection Agency (USEPA or
Agency).

ACTION: Direct final rule.

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SUMMARY: The USEPA announces its decision to correct the ozone
designations for the Sullivan and Belknap counties, New Hampshire
nonattainment areas, and the portions of Oxford, Franklin and Somerset
counties in Maine designated nonattainment. The USEPA is publishing the
designation correction of these areas to attainment/unclassifiable for
ozone, pursuant to section 110(k)(6) of the Clean Air Act (the Act),
which allows the USEPA to correct its actions. The rationale for this
approval is set forth in this final rule; additional information is
available at the address indicated below. In the proposed rules section
of this Federal Register, the USEPA is proposing approval of and
soliciting public comment on this action. If adverse comments are
received on this direct final rule, the USEPA will withdraw this direct
final rule and address the comments received in a subsequent final rule
on the related proposed rule which is being published in the proposed
rules section of this Federal Register. No additional opportunity for
public comment will be provided. Unless this direct final rule is
withdrawn no further rulemaking will occur on this action.

DATES: This action will be effective May 27, 1997 unless notice is
received by April 28, 1997 that someone wishes to submit adverse
comments. If the effective date is delayed, timely notice will be
published in the Federal Register.

ADDRESSES: Comments may be mailed to Susan Studlien, Deputy Director,
Office of Ecosystems Protection, U.S. Environmental Protection Agency,
Region I, JFK Federal Bldg., (CAA) Boston, MA 02203. Copies of EPA's
technical support document are available for public inspection during
normal business hours, by appointment at: Office of Ecosystems
Protection, U.S. Environmental Protection Agency, Region I, One
Congress Street, 11th floor, Boston, MA; the Bureau of Air Quality
Control, Department of Environmental Protection, 71 Hospital Street,
Augusta, ME 04333; and the New Hampshire Department of Environmental
Services, 64 N. Main St., Concord, NH 03302.

FOR FURTHER INFORMATION CONTACT: Richard P. Burkhart, U.S.
Environmental Protection Agency, Region I, JFK Federal Bldg., (CAQ)
Boston, MA 02203. Phone: 617-565-3578.

SUPPLEMENTARY INFORMATION:

I. Background

1. Background for Sullivan and Belknap Counties, New Hampshire

Pursuant to the 1977 amendments to the Clean Air Act (Act), the
USEPA designated nonattainment areas with respect to the 0.08 parts per
million (ppm) photochemical oxidant National Ambient Air Quality
Standard (NAAQS). For such areas, states submitted State Implementation
Plans (SIPs) to control emissions and achieve attainment of the NAAQS.
In New Hampshire, an area named the Merrimack Valley-Southern New
Hampshire Interstate Air Quality Control Region (AQCR 121) was
designated as nonattainment for photochemical oxidants on March 3, 1978
(43 FR 9013). On February 8, 1979 (44 FR 8202), the USEPA revised the
NAAQS from 0.08 ppm to 0.12 ppm and the regulated pollutant from
photochemical oxidants to ozone. Subsequently, on May 29, 1979, New
Hampshire submitted a revised analysis which considered the change in
the NAAQS and its affect on nonattainment designations (hereinafter
referred to as ``the May 1979, New Hampshire submittal'').
The May 1979, New Hampshire submittal requested that the New
Hampshire portion of the Merrimack Valley-Southern New Hampshire
Interstate AQCR be designated nonattainment, even though the Federal
ozone standard had changed, and there were no ozone monitoring data
from the relevant portions of the AQCR. EPA approved the request on
April 11, 1980 (45 FR 24869). AQCR 121 includes Belknap and Sullivan
counties, along with other areas in both New Hampshire and
Massachusetts whose attainment classification and status will be
unchanged by this technical correction.
The May 1979, New Hampshire submittal was based on the revised
Federal ozone standard of 0.12 ppm. Unfortunately, New Hampshire did
not know the full extent of its ozone nonattainment problems, because,
there were no monitors in either Belknap or Sullivan counties. Ozone
monitors for AQCR 121 existed only in Keene, Manchester, Nashua, and
Portsmouth during the period from 1973 to 1978. These sites did
experience exceedances of the 0.12 ppm standard, but none are close
enough to either Belknap or Sullivan county to indicate their air
quality.
Upon the date of enactment of the 1990 amendments to the Clean Air
Act, the New Hampshire portion of AQCR 121 retained its designation of
nonattainment by operation of law pursuant to section 107(d). Pursuant
to the section 181(a), nonattainment areas were further classified
based on their monitored design value, as marginal, moderate, serious,
severe or extreme. The nonattainment areas in New Hampshire were split
into several

[[Page 14642]]

nonattainment areas and classified as follows: (1) the Portsmouth-
Dover-Rochester area as serious, (2) the New Hampshire portion of the
Boston-Lawrence-Worcester area as serious, (3) the Manchester area as
marginal, and (4) Sullivan, Cheshire and Belknap counties, remained
nonattainment with incomplete data. See 56 FR 56694, November 6, 1991.

2. Background for Portions of Franklin, Oxford and Somerset Counties,
Maine

Pursuant to the 1977 amendments to the Clean Air Act (Act), an area
in Maine named the Androscoggin Valley Interstate Air Quality Control
Region (AQCR 107) was designated as nonattainment for photochemical
oxidants by USEPA. On February 8, 1979 (44 FR 8202), the USEPA revised
the NAAQS from 0.08 ppm to 0.12 ppm and the regulated pollutant from
photochemical oxidants to ozone. Subsequently, on April 19, 1979 Maine
submitted a revised analysis which considered the change in the NAAQS
and its effects on designations (hereinafter referred to as ``the
April, 1979 Maine submittal'').
The April 1979, Maine submittal requested that the Maine portion of
the Androscoggin Valley Interstate AQCR be designated nonattainment,
even though the Federal ozone standard had changed and no ozone
monitoring data existed for the relevant portion of the AQCR. It is
worth noting that Maine retained its own state standard to be 0.08 ppm
ozone not to be exceeded more than once per year.^{1 The USEPA
approved the request for the AQCR to be designated nonattainment on
February 19, 1980 (45 FR 10766). AQCR 107 includes portions of Oxford,
Somerset and Franklin counties, along with other areas in both Maine
and New Hampshire whose attainment classification and status will be
unchanged by this technical correction.
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\1\ The Maine Legislative has since set Maine's health based
ozone standard to be equivalent to the Federal standard.
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Ambient ozone data for the State of Maine in the 1970's was
severely limited. There were not any monitors in either of the three
counties. An ozone monitor in Maine for AQCR 107 did exist in the Town
of Unity for a short period in 1977. This site did not experience an
exceedance of the 0.12 Federal ppm ozone standard, which is the
applicable standard under the Act for the purposes of designating the
federal attainment status of areas under Section 107.
Upon the date of enactment of the 1990 amendments to the Clean Air
Act, the areas that make up AQCR 107 retained their designation of
nonattainment by operation of law pursuant to section 107(d).
Nonattainment areas were further classified based on their monitored
design value, pursuant to section 181(a), as marginal, moderate,
serious, severe or extreme. The areas in Maine in AQCR 107 were split
up and joined with other areas to form several nonattainment areas
which were classified as follows: the Knox and Lincoln counties area as
moderate, the Lewiston-Auburn area as moderate (which is Androscoggin
and Kennebec counties), the Hancock and Waldo counties area as
marginal, and portions of Oxford, Franklin and Somerset counties,
remained nonattainment with incomplete data. See 56 FR 56694, November
6, 1991.

II. Summary of This Action

Section 110(k)(6) of the Clean Air Act provides the USEPA with the
authority to correct designation determinations made in error.^{2
The USEPA interprets Section 110(k)(6) to authorize the Agency to make
corrections to a promulgated regulation when it is shown to EPA's
satisfaction that:
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\2\ It states: CORRECTIONS--Whenever the Administrator
determines that the Administrator's action approving, disapproving,
or promulgating any plan or plan revision (or part thereof), area
designation, redesignation, classification, or reclassification was
in error, the Administrator may in the same manner as the approval,
disapproval, or promulgation revise such action as appropriate
without requiring any further submission from the State. Such
determination and the basis thereof shall be provided to the State
and public.
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(1) EPA clearly erred in failing to consider or inappropriately
considered information made available to EPA at the time of the
promulgation; or the information made available at the time of
promulgation is subsequently demonstrated to have been clearly
inadequate; and;
(2) other information persuasively supports a change in the
regulation 57 FR 56763 (November 30, 1992)
The USEPA's earlier action approving the retention of the
nonattainment designations for the Belknap and Sullivan counties in New
Hampshire was in error. That action was based on the State's May 29,
1979 submittal. The USEPA believes that the information submitted by
New Hampshire in the May, 1979 submittal did not provide enough data to
designate these two areas nonattainment for ozone because it did not
contain in-county ozone monitoring data showing violations of the 0.12
ppm NAAQS. Furthermore, in-county monitoring data collected from 1991-
1996 in the Sullivan County nonclassifiable areas do not demonstrate
violations of the 0.12 ppm NAAQS.
The USEPA hereby determines that the information available at the
time of the designation was clearly inadequate, and that the in-county
monitoring data available since the original designation persuasively
support a change in the designations. The USEPA is correcting this
error by correcting the designations for these areas to attainment/
unclassifiable.
Similarly, the USEPA's action approving the retention of the
nonattainment designations for the portions of Oxford, Somerset and
Franklin counties in Maine designated nonattainment was also in error.
The USEPA's action was based on the April 19, 1979 Maine submittal. The
USEPA believes that the information submitted by Maine was insufficient
to designate these three areas nonattainment for ozone because it did
not contain ozone monitoring data showing violations of the 0.12 ppm
NAAQS. Furthermore, in-county monitoring data from 1991-1996 collected
in those counties do not show violations of the 0.12 ppm federal NAAQS.
Since the information available at the time of the designation was
clearly inadequate and in-county monitoring data support a change in
the designations, the USEPA is correcting this error by correcting the
designations for these areas to attainment/unclassifiable.
In order to demonstrate a violation of the ozone NAAQS, the average
annual number of expected exceedances of the NAAQS must be greater than
1.0 per calendar year. (See 40 CFR 50.9.) The USEPA reviewed the basis
of the original ozone designation for these five areas. Ambient air
quality monitoring data for ozone was retrieved from the Aerometric
Information Retrieval System (AIRS). The USEPA found that none of the
five nonattainment nonclassifiable areas in New Hampshire and Maine
ever had ozone monitoring data above 0.12 ppm. More information,
including the AIRS ozone data report for these areas and the Technical
Support Document (TSD), is located in the docket for this rulemaking.

III. Rulemaking Action

Pursuant to section 110(k)(6) of the Clean Air Act (the Act), which
allows the USEPA to correct its actions, the USEPA is promulgating a
correction to the designation status of the Sullivan and the Belknap
counties, New Hampshire nonattainment areas, and the portions of
Oxford, Franklin and Somerset counties in Maine designated
nonattainment. The public should be advised that this action is
effective May

[[Page 14643]]

27, 1997. However, if notice is received by April 28, 1997 that someone
submits adverse or critical comments, this action will be withdrawn,
and a subsequent final rule will be published which will address the
comments received.
The USEPA is publishing a separate document in today's issue of the
Federal Register publication, which constitutes a ``proposed approval''
of the requested SIP revisions and clarifies this rulemaking will not
be deemed final if timely adverse or critical comments are filed. The
``direct final'' approval shall be effective on May 27, 1997, unless
the USEPA receives adverse or critical comments by April 28, 1997.
If the USEPA receives comments adverse to or critical of the
approval discussed above, the USEPA will withdraw this approval before
its effective date by publishing a subsequent Federal Register document
which withdraws this final action. All public comments received will
then be addressed in a subsequent rulemaking notice. Any parties
interested in commenting on this action should do so at this time. If
no such comments are received, the USEPA hereby advises the public that
this action will be effective on May 27, 1997.

IV. Administrative Requirements

A. Executive Order (E.O.) 12866

Under E.O. 12866 (58 FR 51735, Oct. 4, 1993), this action is not a
``significant regulatory action'' and, is therefore not subject to
review by the Office of Management and Budget.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., the
USEPA 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, the USEPA 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. Correction of designation status of these areas to
attainment under section 110(k)(6) of the Clean Air Act does not impose
any new requirements on small entities. Correction of designation
status is an action that affects the status of a geographical area and
does not impose any regulatory requirements on sources. Therefore I
certify that the approval of the redesignation request does not have a
significant impact on a substantial number of small entities.

C. Unfunded Mandates

Under Sections 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the
USEPA must prepare a budgetary impact statement to accompany any
proposed or final rule that includes a Federal mandate that may result
in estimated costs to State, local, or tribal governments in the
aggregate; or to the private sector, of $100 million or more. Under
Section 205, the USEPA must select the most cost-effective and least
burdensome alternative that achieves the objectives of the rule and is
consistent with statutory requirements. Section 203 requires the USEPA
to establish a plan for informing and advising any small governments
that may be significantly or uniquely impacted by the rule.
The USEPA has determined that this correction action promulgated
does not include a Federal 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. This Federal action
approves pre-existing requirements under State or local law, and
imposes no new requirements. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), the USEPA
submitted 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 General Accounting Office prior to
publication of the rule in today's Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).

E. 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 May 27, 1997. 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).) EPA encourages
interested parties to comment in response to the proposed rule rather
than petition for judicial review, unless the objection arises after
the comment period allowed for in the proposal.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides.

Dated: March 19, 1997.
Carol M. Browner,
Administrator.

Part 81 of chapter I, title 40 of the Code of Federal Regulations
is amended as follows:

PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

1. The authority citation of part 81 continues to read as follows:

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

2. In Sec. 81.320 the ozone table is amended by revising entries
for ``Franklin County Area'', ``Oxford County Area'', and ``Somerset
County Area'' to read as follows:

Sec. 81.320 Maine.

* * * * *

Maine--Ozone
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Designation Classification
Designated area -----------------------------------------------------------------------------------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
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Franklin County Area
Franklin County (part).......... May 27, 1997................... Unclassifiable/Attainment

* * * * * * *
Oxford County Area

[[Page 14644]]

Oxford County (part)............ May 27, 1997................... Unclassifiable/Attainment

* * * * * * *
Somerset County Area
Somerset County (part).......... May 27, 1997................... Unclassifiable/Attainment

* * * * * * *
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\1\ This date is November 15, 1990, unless otherwise noted.

* * * * *
2. In Sec. 81.330 the ozone table is amended by revising entries
for ``Belknap County'' and ``Sullivan County'' to read as follows:

Sec. 81.330 New Hampshire.

* * * * *

New Hampshire--Ozone
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Designation Classification
Designated areas -----------------------------------------------------------------------------------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
Belknap County...................... May 27, 1997................... Unclassifiable/Attainment

* * * * * * *
Sullivan County..................... May 27, 1997................... Unclassifiable/Attainment

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[FR Doc. 97-7628 Filed 3-26-97; 8:45 am]
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