[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \2\ As noted above, EPA will evaluate whether the Portland Area 
continues to attain based on 2000-2002 data before finalizing this 
action.
---------------------------------------------------------------------------

    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
----------------------------------------------------------------------------------------------------------------
         Name of control measure                     Type of measure                     Approval status
----------------------------------------------------------------------------------------------------------------
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).
----------------------------------------------------------------------------------------------------------------

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