[Federal Register Volume 78, Number 150 (Monday, August 5, 2013)]
[Proposed Rules]
[Pages 47253-47259]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-18831]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52

[EPA-R01-OAR-2012-0895; FRL-9841-3]


Approval and Promulgation of Air Quality Implementation Plans; 
Maine; Oxides of Nitrogen Exemption and Ozone Transport Region 
Restructuring

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve Maine's October 13, 2012, request 
for an exemption from the nitrogen oxides (NOX) emissions 
control requirements of the Clean Air Act (CAA or Act) in relation to 
the 2008 8-hour ozone national ambient air quality standards (standards 
or NAAQS). EPA's proposed approval of Maine's request is based on a 
technical demonstration submitted to EPA by Maine's Department of 
Environmental Protection (ME DEP) showing that NOX emissions 
in Maine are not having a significant adverse impact on the ability of 
any nonattainment area located in the Ozone Transport Region (OTR) to 
attain the ozone standards during times when elevated ozone levels are 
monitored in those areas.
    Additionally, EPA is also proposing to approve the State of Maine's 
February 11, 2013 request that EPA approve a ``limited opt-out'' or 
``restructuring'' of the Act's OTR requirements pertaining to 
nonattainment New Source Review (NSR) permitting requirements 
applicable to major new and modified stationary sources of volatile 
organic compounds (VOC). EPA is proposing to approve Maine's request 
because a technical demonstration submitted by ME DEP shows 
convincingly that the control of VOC emissions throughout the entire 
State of Maine through implementation of the VOC nonattainment NSR 
permitting requirements will not significantly contribute to the 
attainment of the 2008 8-hour ozone standards in any area of the OTR.

DATES: Written comments must be received on or before September 4, 
2013.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R01-OAR-2012-0895 by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (617) 918-0047.
    4. Mail: ``Docket Identification Number EPA-R01-OAR-2012-0895,'' 
Anne Arnold, U.S. Environmental Protection Agency, EPA New England 
Regional Office, 5 Post Office Square, Suite 100 (mail code: OEP05-2), 
Boston, MA 02109-3912.
    5. Hand Delivery or Courier. Deliver your comments to: Anne Arnold, 
Manager, Air Quality Planning Unit, Office of Ecosystem Protection, 
U.S. Environmental Protection Agency, EPA New England Regional Office, 
5 Post Office Square, Suite 100, Boston, MA 02109-3912. Such deliveries 
are only accepted during the Regional Office's normal hours of 
operation. The Regional Office's official hours of business are Monday 
through Friday, 8:30 a.m. to 4:30 p.m., excluding legal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-
2012-0895. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through www.regulations.gov or 
email, information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' system 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
comment directly to EPA without going through www.regulations.gov, your 
email address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other

[[Page 47254]]

information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically in 
www.regulations.gov or in hard copy at Air Quality Planning Unit, 
Office of Ecosystem Protection, U.S. Environmental Protection Agency, 
EPA New England Regional Office, 5 Post Office Square, Suite 100, 
Boston, MA 02109-3912. EPA requests that if at all possible, you 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., 
excluding legal holidays.
    In addition to the publicly available docket materials available 
for inspection electronically in the Federal Docket Management System 
at www.regulations.gov, and the hard copy available at the Regional 
Office, which are identified in the ADDRESSES section of this Federal 
Register, copies of the state submittal are also available for public 
inspection during normal business hours, by appointment at the Bureau 
of Air Quality Control, Department of Environmental Protection, First 
Floor of the Tyson Building, Augusta Mental Health Institute Complex, 
Augusta, ME 04333-0017.

FOR FURTHER INFORMATION CONTACT: Richard P. Burkhart, Air Quality 
Planning Unit, U.S. Environmental Protection Agency, EPA New England 
Regional Office, 5 Post Office Square, Suite 100, Boston, MA 02109-
3912, telephone number (617) 918-1664, fax number (617) 918-0664, email 
[email protected].

SUPPLEMENTARY INFORMATION:  Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. What is EPA proposing?
II. What are the Clean Air Act requirements that form the legal 
basis for EPA's actions?
    A. NOX Exemption Under Section 182(f) of the Act
    B. OTR Restructuring Request of the VOC Nonattainment NSR 
Permitting Requirements
III. What is the scope of the NOX exemption under section 
182(f) of the Act?
IV. What is the scope of the proposed VOC nonattainment NSR 
restructuring under section 176A(a)(2) of the Act?
V. What are the technical criteria EPA used to evaluate Maine's 
requests?
VI. What was included in the State of Maine's requests?
VII. What is EPA's evaluation of Maine's requests?
VIII. Which provisions did Maine request be removed by EPA from the 
SIP?
IX. Proposed Actions
X. Statutory and Executive Order Reviews

I. What is EPA proposing?

    EPA is proposing to approve two separate requests submitted by the 
State of Maine. The first request was submitted to EPA on October, 13, 
2012, seeking an exemption from the NOX emissions control 
requirements contained in section 182(f) of the Act in relation to the 
2008 8-hour ozone national ambient air quality standards. More 
specifically, the emissions control requirements in question are: (1) 
Any additional NOX RACT requirements that might be required 
pursuant to the 2008 8-hour ozone standards; and (2) NOX 
nonattainment NSR permitting requirements applicable to new and 
modified major stationary sources. Maine's SIP already contains 
language that renders the SIP's NOX nonattainment NSR 
permitting requirements inapplicable in any area for which EPA has 
approved a section 182(f) NOX exemption, so no SIP revision 
would be required to implement the exemption from NOX 
nonattainment NSR permitting requirements if EPA grants this proposed 
NOX waiver. EPA's proposed approval of Maine's request is 
based on a technical demonstration submitted by Maine's Department of 
Environmental Protection (ME DEP) showing that NOX emissions 
in Maine are not having a significant adverse impact on the ability of 
any nonattainment area located in the OTR to attain the ozone standards 
during times when elevated ozone levels are monitored in those areas. 
Consequently, any additional reductions in NOX emissions in 
the State of Maine that would be required under the 2008 8-hour ozone 
standards, and which would be beyond what Maine's State Implementation 
Plan (SIP) regulations already provide for, are not necessary for 
attainment or maintenance of the ozone standards in any areas within 
the OTR. Thus, because any such NOX reductions in Maine 
would be in excess of the emissions necessary for attainment and 
maintenance of the ozone standards, EPA has determined that those 
emissions reductions may be exempted under section 182(f) of the Act.
    The State's second request, submitted to EPA on February 11, 2013, 
seeks EPA approval, pursuant to section 176A(a)(2) of the Act, of a 
``limited opt-out'' or ``restructuring'' of the OTR requirements set 
forth in section 182(f) of the Act pertaining to VOC nonattainment NSR 
permitting requirements. In connection with this latter request, EPA 
expects to take final action on a request for a SIP revision that the 
State of Maine has committed to re-submit to EPA after the close of the 
State's public notice and hearing process on the proposed revision. The 
SIP revision would conform Maine's SIP to the section 176A(a)(2) 
restructuring of the VOC nonattainment NSR permitting requirements. The 
substance of both the OTR restructuring request and the State's 
proposed SIP revision are available now for review in the docket for 
this action, so EPA is proposing to approve them both, subject to the 
State completing its notice and hearing process on the SIP revision.
    NOX RACT and NOX nonattainment NSR exemption:
    The State of Maine is part of the OTR pursuant to section 184(a) of 
the Act. The entire State of Maine is designated unclassifiable/
attainment for the 2008 8-hour ozone standards. (See 40 CFR 81.320.) 
Sections 182(f) and 184 of the Act, in combination, require states in 
the OTR, such as Maine, to adopt reasonably available control 
technology (RACT) regulations for major stationary sources of 
NOX and to provide for nonattainment NSR for major new and 
modified stationary sources of NOX. EPA's proposed approval 
of Maine's request is based on the State's technical demonstration 
showing that NOX emissions in Maine are not having a 
significant adverse impact on the ability of nonattainment areas 
located in the OTR to attain and maintain the ozone standards during 
times when elevated ozone levels are monitored in those areas. Thus, 
because any such NOX reductions in Maine would be in excess 
of the emissions necessary for attainment and maintenance of the ozone 
standards, EPA has determined that those emissions reductions may be 
exempted under Section 182(f) of the Act.
    VOC nonattainment NSR restructuring:
    Pursuant to section 176A(a)(2) of the Act, EPA is also proposing to 
approve the State's February 11, 2013 request to restructure or remove 
the VOC nonattainment NSR permitting requirements that currently apply 
in ozone attainment areas solely by virtue of Maine's location in the 
OTR (all of Maine is designated unclassifiable/attainment with the 2008 
8-hour ozone standards). Maine's February 11, 2013 request is based on 
a ``limited opt-out'' or ``restructuring'' of the OTR requirements 
under section 176A(a)(2)

[[Page 47255]]

of the Act. The State's request is justified by a technical 
demonstration that clearly supports ME DEP's conclusion that the VOC 
emissions controlled by the State's nonattainment NSR permitting 
requirements will not significantly contribute to the attainment of the 
ozone standards in Maine or in any other area within the OTR.
    In connection with this request, EPA expects to take final action 
on a request for a SIP revision that the State of Maine has committed 
to re-submit to EPA after the close of the State's public notice and 
hearing process on the proposed revision. The SIP revision would 
conform the language of Maine's SIP to the section 176A(a)(2) 
restructuring of the VOC nonattainment NSR requirements, i.e., render 
those requirements inapplicable solely by virtue of Maine's location in 
the OTR. Because all of Maine is designated unclassifiable/attainment 
for the 2008 8-hour ozone standards, the VOC nonattainment NSR 
permitting requirements in Maine's SIP would not currently apply 
anywhere in Maine. EPA will not take final action on Maine's section 
176A(a)(2) restructuring request until Maine re-submits the request for 
a SIP revision described above to EPA. EPA would take final action on 
the restructuring request and the request for a SIP revision at the 
same time.
    If EPA takes final action approving both of Maine's requests, and 
in addition approves the request for a SIP revision that the State of 
Maine has committed to re-submit to EPA, the following consequences 
would result. First, any NOX RACT requirements that would 
otherwise have been necessary in Maine in relation to the 2008 8-hour 
ozone standard would now not be required to be included in Maine's SIP 
through a SIP revision. However, NOX RACT requirements 
already contained in Maine's SIP for purposes of implementing earlier 
ozone standards promulgated prior to the 2008 8-hour ozone standard 
will remain in Maine's SIP. Second, NOX nonattainment NSR 
permitting requirements would no longer apply anywhere in the State 
upon EPA's approval of the NOX waiver because Maine's 
currently approved NSR SIP already eliminates NSR for NOX in 
areas where EPA has approved a NOX waiver. Third, the VOC 
nonattainment NSR permitting requirements, which apply throughout the 
entire State of Maine, would no longer apply in any area in Maine at 
this time and would never apply solely by virtue of Maine's location in 
the OTR. Fourth, for major new and modified stationary sources of VOC 
and NOX throughout the entire State of Maine, Maine's PSD 
permitting requirements would apply in lieu of the nonattainment NSR 
permitting requirements. The primary differences between the 
nonattainment NSR and PSD permitting programs are that (1) the 
emissions threshold at which the permitting requirement is triggered 
can be higher in the PSD program, (2) the required level of control is 
more stringent under nonattainment NSR (lowest achievable emission rate 
(LAER) as compared to best achievable control technology (BACT) under 
PSD), and (3) emissions offsets must be obtained under nonattainment 
NSR to account for the new growth, but such emissions offsets are not 
required under PSD and, instead, sources must demonstrate that their 
new emissions will not exceed the emissions growth increment available 
in the area.

II. What are the Clean Air Act requirements that form the legal basis 
for EPA's actions?

A. NOX Exemption Under Ssection 182(f) of the Act

    The air quality planning requirements for the reduction of 
NOX emissions are set out in section 182(f) of the Act. 
Section 182(f) requires states with areas designated and classified as 
moderate nonattainment and above for ozone, or located in ozone 
transport regions, to impose the same control requirements for major 
stationary sources of NOX as apply under the Act to major 
stationary sources of VOC. These requirements include the adoption of 
RACT regulations for major stationary sources and the adoption of 
regulations for nonattainment NSR permitting applicable to major new 
and modified stationary sources of NOX. Section 182(f)(1) of 
the Act, however, provides that these requirements do not apply if EPA 
determines that any of the tests set forth in section 182(f) of the Act 
are met, i.e., tests based on the relationship of the NOX 
emission reductions in question to: (1) Net air quality benefit; (2) 
contribution to attainment; or (3) net ozone air quality benefits. 
Further, section 182(f) of the Act provides that EPA may limit the 
application of the NOX emissions controls in question if EPA 
determines that such emissions reductions constitute excess reductions 
in emissions. If the EPA Administrator determines, under Section 182(f) 
of the Act, that additional reductions of NOX are excess for 
an entire area, the area at issue shall automatically (i.e., a State 
would not need to submit an exemption request for each requirement) be 
exempt from the applicable requirements.
    On December 26, 1995 (60 FR 66748), EPA approved the State of 
Maine's section 182(f) NOX exemption request for counties in 
northern Maine (specifically, Aroostook, Franklin, Oxford, Penobscot, 
Piscataquis, Somerset, Washington, Hancock and Waldo Counties) in 
relation to the 1-hour ozone standard. At this time, the NOX 
exemption relating to the 1-hour ozone standard remains in effect as 
approved by EPA in 1995. In addition, on February 3, 2006 (71 FR 5791), 
EPA approved a section 182(f) NOX exemption request for a 
similar area in Maine (specifically, Aroostook, Franklin, Oxford, 
Penobscot, Piscataquis, Somerset, Washington, and portions of Hancock 
and Waldo Counties) in relation to the 1997 8-hour ozone standard. At 
this time, the NOX exemption relating to the 1997 8-hour 
ozone standard remains in effect as approved by EPA in 2006.
    EPA's implementation rule for the 1997 8-hour ozone standard (69 FR 
23951) requires areas to request a separate section 182(f) 
NOX exemption request under the 1997 8-hour ozone standard, 
even if those areas previously received an exemption under the 1-hour 
ozone standard. Because EPA has not yet issued a final implementation 
rule for the 2008 8-hour ozone standard,\1\ EPA has decided to follow 
the same approach as was taken in transitioning from the 1-hour ozone 
standards to the 1997 8-hour ozone standards, i.e., a state must 
request a separate NOX exemption for the new 2008 8-hour 
ozone standards, even if that state had already been granted a 
NOX exemption under section 182(f) under the 1997 8-hour 
ozone standard.
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    \1\ EPA published in the Federal Register on June 6, 2013 (78 FR 
34178) a proposed implementation rule that would follow the same 
approach.
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B. OTR Restructuring Request of the VOC Nonattainment NSR Permitting 
Requirements

    Sections 172(c)(5) and 173 of the Act together contain the SIP 
permitting requirements applicable to new or modified major stationary 
sources in nonattainment areas. Section 184(b)(2) of the Act, relating 
to emissions control requirements applicable in ozone transport 
regions, provides that stationary sources that emit or have the 
potential to emit at least 50 tons per year of VOC are subject to the 
requirements which would apply to major stationary sources under the 
Act if the area were classified as a moderate nonattainment area. These 
provisions of

[[Page 47256]]

the Act, in combination, resulted in the promulgation of the State of 
Maine's VOC nonattainment NSR SIP permitting requirements relevant to 
EPA's proposed action here. EPA's proposed approval of the State of 
Maine's OTR restructuring request, if finalized in a subsequent 
rulemaking in combination with action on a SIP revision, would mean 
that the VOC nonattainment NSR permitting requirements would no longer 
apply in the State of Maine on the sole basis that Maine is located in 
the OTR. The SIP's nonattainment NSR permitting requirements applicable 
to VOC sources will remain in the SIP but would only apply in ozone 
nonattainment areas, if EPA finalizes its approval of the section 
176A(a)(2) restructuring request and approves the corresponding SIP 
revision. As a practical matter, however, because all areas in Maine 
are designated unclassifiable/attainment for the 2008 8-hour ozone 
standards, the VOC nonattainment NSR permitting requirements in the SIP 
would only apply if an area in Maine is designated nonattainment.
    Section 176A of the Clean Air Act is entitled ``Interstate 
Transport Commissions,'' and contains the criteria upon which areas 
that are part of interstate transport regions may be added or removed 
from such transport regions. Section 176A(a)(2) provides that the EPA 
Administrator may remove any State or portion of a State from an 
interstate transport region, in this case the OTR, whenever the 
Administrator has reason to believe that control of emissions in that 
State or portion of the State pursuant to the Act's requirements for 
that interstate transport region will not significantly contribute to 
attainment of a NAAQS in that interstate transport region. Implicit in 
EPA's authority to remove a State or a portion of a State from the OTR 
in its entirety, is the authority to eliminate or ``restructure'' 
specific emissions control requirements for a State that remains in the 
OTR, provided that such State demonstrates that the control of 
emissions from such requirements will not significantly contribute to 
attainment of the ozone standards anywhere in the OTR. EPA's proposed 
action under section 176A(a)(2) of the Act meets this requirement 
because the State of Maine has demonstrated that the control of VOC 
emissions through implementation of the nonattainment NSR permitting 
requirements will not significantly contribute to attainment of the 
ozone standards in the OTR. EPA previously has used this statutory 
authority to approve requests by the States of Maine and New Hampshire 
to restructure those states' motor vehicle inspection and maintenance 
(I/M) requirements, on January 10, 2001. See 66 FR 1868 and 66 FR 1871, 
respectively.

III. What is the scope of the NOX exemption under section 
182(f) of the Act?

    Section 182(f) provides that if the EPA Administrator determines 
that additional reductions of NOX are excess, the area in 
question shall be exempt from the following requirements (as 
applicable): motor vehicle inspection and maintenance (I/M) program 
NOX requirements; the NOX-related general 
conformity provisions; the NOX-related transportation 
conformity provisions in 40 CFR part 93; NOX RACT; and 
nonattainment area NSR for major new sources and modifications of 
NOX. (See Section 182(f) of the Act, 40 CFR 51.351(d) for I/
M, 40 CFR 93.119(f)(2) for transportation conformity and 40 CFR 93.199 
(f)(2) for general conformity.) If the EPA Administrator determines, 
under Section 182(f) of the Act, that additional reductions of 
NOX are excess for an entire area, the area at issue shall 
automatically (i.e., a State would not need to submit an exemption 
request for each requirement) be exempt from the applicable 
requirements.
    Consequently, if EPA finalizes its approval of Maine's request for 
a section 182(f) NOX exemption, Maine need not modify its 
NOX control SIP provisions to address any new emissions 
controls required in relation to the 2008 8-hour ozone standard, 
including I/M.\2\ Also, because the entire State of Maine is now 
designated unclassifiable/attainment for the 2008 8-hour ozone 
standard, transportation conformity for the 2008 8-hour ozone standard 
(See 40 CFR 93.102(b)) and general conformity in relation to the 2008 
8-hour ozone standard (See 40 CFR 93.153) do not apply. EPA's proposed 
action on Maine's October 13, 2012 section 182(f) request for a 
NOX exemption, if finalized, would have no impact on I/M or 
conformity requirements in Maine. Furthermore, if EPA's proposed 
approval of Maine's section 182(f) NOX exemption request is 
finalized, any NOX RACT requirements that would otherwise 
have been necessary in Maine in relation to the 2008 8-hour ozone 
standard would not be required (although NOX RACT 
requirements already contained in Maine's existing SIP for purposes of 
implementing prior ozone standards will remain in Maine's SIP). 
Finally, NOX nonattainment NSR permitting requirements would 
no longer apply anywhere in the State. If EPA's action on Maine's 
request is finalized, major new and modified stationary sources of 
NOX would be subject to the Maine SIP's PSD permitting 
requirements in lieu of the NOX nonattainment NSR permitting 
requirements. The primary differences between those two permitting 
requirements are described earlier in this notice of proposed 
rulemaking.
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    \2\ As noted earlier in this notice of proposed rulemaking, 
Maine also received a ``limited opt-out'' or ``restructuring'' of 
the Act's I/M requirements in 2001 pursuant to section 176A(a)(2) of 
the Act.
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IV. What is the scope of the proposed VOC nonattainment NSR 
restructuring under section 176A(a)(2) of the Act?

    All areas in the State of Maine are designated unclassifiable/
attainment for the 2008 8-hour ozone standard. Consequently, the effect 
of the proposed VOC nonattainment NSR restructuring in combination with 
the planned SIP revision, will be that the Maine SIP's PSD regulations, 
applicable to permitting major new or modified stationary sources of 
regulated NSR pollutants including VOC, would apply in lieu of the 
State's nonattainment NSR permitting requirements in every area within 
the State. The VOC nonattainment NSR permitting requirements currently 
part of Maine's SIP would no longer be applicable anywhere in the State 
solely by virtue of Maine's location in the OTR. The primary 
differences between those two permitting requirements are described 
earlier in this notice of proposed rulemaking.

V. What are the technical criteria EPA used to evaluate Maine's 
requests?

    EPA's criteria for the evaluation of a request for a section 182(f) 
NOX exemption are set forth in a memorandum from Stephen D. 
Page, Director, OAQPS, dated January 14, 2005, entitled ``Guidance on 
Limiting Nitrogen Oxides Requirements Related to 8-Hour Ozone 
Implementation.'' As explained earlier in this notice of proposed 
rulemaking, EPA evaluated Maine's technical demonstration and has 
concluded that the demonstration shows that NOX emissions in 
Maine are not having a significant adverse impact on the ability of any 
nonattainment area located in the OTR to attain or maintain the ozone 
standards during times when elevated ozone levels are monitored in 
those areas. EPA is therefore proposing to approve Maine's request for 
a section 182(f) NOX exemption.
    EPA's criteria for opting out of the OTR are set forth in a 
memorandum from John S. Seitz, Director, OAQPS,

[[Page 47257]]

dated May 25, 1995, and entitled ``Technical Guidance for Removing 
Areas From the Northeast Ozone Transport Region (OTR).'' As noted 
earlier in this notice of proposed rulemaking, EPA evaluated Maine's 
technical demonstration and determined that Maine's demonstration shows 
that the control of VOC emissions through implementation of the 
nonattainment NSR permitting requirements in Maine will not 
significantly contribute to attainment of the ozone standard anywhere 
in the OTR. EPA is therefore proposing to approve Maine's request for a 
section 176A(a)(2) restructuring of the VOC nonattainment NSR 
permitting requirements.

VI. What was included in the State of Maine's requests?

    As noted earlier, Maine submitted a technical demonstration with 
its request for a section 182(f) NOX exemption showing that 
NOX emissions in Maine are not having a significant adverse 
impact on the ability of any nonattainment area located in the OTR to 
attain or maintain the ozone standards during times when elevated ozone 
levels are monitored in those areas.
    For the State's section 176A(a)(2) VOC nonattainment NSR 
restructuring request, Maine's technical demonstration showed that the 
control of emissions from those permitting requirements will not 
significantly contribute to the attainment of the 2008 8-hour ozone 
standard in any area in the OTR.
    The State's submittals include detailed technical analyses for VOC 
and NOX emissions in the State, including an analysis of 
whether emissions from Maine impact areas in the OTR. The State's 
technical analyses rely on several different techniques used to analyze 
those emissions and their impacts, the primary technique being back 
trajectories using the HYSPLIT trajectory model.
    For the section 182(f) NOX exemption and the VOC 
nonattainment NSR restructuring requests, ME DEP air quality 
meteorologists conducted air trajectory analyses of days during the 
2009 through 2011 ozone seasons at times when elevated ozone levels 
were monitored. The analyses were conducted for monitoring sites in the 
ozone nonattainment areas closest to Maine, in the State of Connecticut 
and on Martha's Vineyard, Massachusetts. The air trajectories used by 
ME DEP are four-dimensional representations of the path an air parcel 
follows, in time, based on archived surface and upper-level 
meteorological data. A back trajectory, as used by ME DEP in this case, 
is the path the parcel takes to reach a specific point in time and 
space. ME DEP created a back trajectory for each hour that ozone levels 
were equal to or greater than 75 parts per billion (ppb) for every day 
that the 2008 ozone standard was exceeded (i.e., ozone levels exceeded 
0.075 parts per million (or 75 ppb) on an 8-hour average basis) and 
recorded in the State of Connecticut and in Martha's Vineyard, 
Massachusetts. For each such instance, 24-hour back trajectories from 
10, 150 and 250 meters above ground level were created.
    ME DEP used the National Oceanic and Atmospheric Administration 
(NOAA) Air Resources Laboratory's HYSPLIT model to create and map the 
trajectories. The HYSPLIT model uses gridded meteorological data, which 
is selected within the on-line model's graphical user interface. For 
more information about HYSPLIT please refer to the following document 
by Roland R. Draxler and G.D. Hess: Description of the HYSPLIT 4 
Modeling System. (See http://www.arl.noaa.gov/documents/reports/arl-224.pdf.) ME DEP staff meteorologists used the on-line version of the 
HYSPLIT model to create the trajectories used in the DEP's analyses. 
Archived ETA Data Assimilation System (EDAS) meteorological data at 40 
kilometers (km) was used because that data set had the best resolution 
and had an excellent data recovery rate.
    ME DEP provided to EPA a map of HYSPLIT back trajectories 
calculated for all hours when ozone monitoring sites in the State of 
Connecticut and in Martha's Vineyard, Massachusetts exceeded the 2008 
ozone standards. That map clearly shows that emissions from Maine do 
not have a significant adverse impact on the ability of any 
nonattainment area located in the OTR to attain and maintain the 2008 
8-hour ozone standards, because none of the dozens of plotted back 
trajectories originate in Maine or even traverse any portion of Maine. 
Therefore, the analysis demonstrates convincingly that NOX 
and VOC emissions in Maine will not significantly contribute to 
attainment of the ozone standards anywhere in the OTR.
    In addition to the trajectories discussed above, Maine also 
provided in its request for VOC nonattainment NSR restructuring 
information from several ozone modeling analyses conducted by EPA for 
the eastern United States. Maine's submission referenced EPA 
photochemical modeling for: (1) The NOX SIP call (63 FR 
57356: October 27, 1998); (2) the Clean Air Interstate Rule (CAIR) (70 
FR 25162; May 12, 2005); and (3) the Cross State Air Pollution Rule 
(CSAPR) (76 FR 48208; August 8, 2011). Table 1 below contains a summary 
of those EPA modeling results for the State of Maine. With regard to 
NOX emissions in Maine, the detailed photochemical ozone 
modeling for these three programs shows that emissions of 
NOX in the State of Maine do not have a significant adverse 
impact on the ability of any ozone nonattainment areas in the OTR to 
attain or maintain the 2008 8-hour ozone standards.\3\ With regard to 
VOC emissions in Maine, the detailed photochemical ozone modeling shows 
that control of emissions of VOC in Maine do not significantly 
contribute to the attainment of the 2008 8-hour ozone standard in any 
area of the OTR.
---------------------------------------------------------------------------

    \3\ Although the CSAPR rule was vacated (See EME Homer City 
Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. August 21, 2012), 
nothing in the opinion disturbs or calls into question that 
conclusion or the validity of the air quality modeling on which the 
conclusion is based.

     Table 1--Maine's Modeled Impacts (ppb) on Massachusetts and Connecticut 8-hour Ozone Nonattainment Areas
----------------------------------------------------------------------------------------------------------------
                                                                                Clean air       Cross state air
                         State                              NOX SIP call        interstate         pollution
                                                                                 program           regulation
----------------------------------------------------------------------------------------------------------------
Connecticut............................................                  0                0.1              0.141
Massachusetts (Dukes County)...........................         0       0.3              0.015
----------------------------------------------------------------------------------------------------------------
 Note that Dukes County, Massachusetts was not modeled for these two programs so the impact to Rhode
  Island was used because it is representative of the Massachusetts Dukes County nonattainment area. Dukes
  County, Massachusetts consists of several islands in Nantucket Sound, the largest of which is Martha's
  Vineyard.


[[Page 47258]]

VII. What is EPA's evaluation of Maine's requests?

    Based on the ME DEP's technical analyses discussed above, EPA 
believes that the State has demonstrated convincingly that control of 
emissions of VOC in Maine do not significantly contribute to the 
attainment of the 2008 8-hour ozone standard in any area in the OTR. 
Such demonstration is sufficient to support Maine's section 176A(a)(2) 
VOC nonattainment NSR restructuring request. Based on those same 
technical analyses, EPA has determined that the State has demonstrated 
convincingly that emissions of NOX in Maine are not having a 
significant adverse impact on the ability of any ozone nonattainment 
areas in the OTR to attain or maintain the ozone standards during times 
when elevated ozone levels are monitored in those areas. Such 
demonstration is also sufficient to support Maine's request for a 
NOX exemption under section 182(f).
    Consequently, EPA is proposing to approve both the State's request 
for an exemption from the section 182(f) NOX requirements 
and the State's request to restructure or obtain a ``limited opt-out'' 
of the Act's VOC nonattainment NSR requirements relating to the OTR.

VIII. Which provisions did Maine request be removed by EPA from the 
SIP?

    In its February 11, 2013 request to EPA, Maine requested that EPA 
remove specific language from certain parts of its SIP consistent with 
the State's request under section 176A(a)(2) for VOC nonattainment NSR 
restructuring. By letter dated July 5, 2013, Maine committed to provide 
notice and an opportunity for a hearing on the proposed SIP revisions 
and to resubmit its request for a SIP revision after the public 
participation process concludes. As noted earlier, Maine's existing SIP 
provisions contain language that will be consistent with a section 
182(f) NOX exemption in relation to the 2008 8-hour ozone 
standards, but Maine's request for a SIP revision would nonetheless 
also affect the applicability of NOX nonattainment NSR in 
Maine as explained below.
    NOX exemption under section 182(f).
    If EPA takes final action to approve Maine's section 182(f) 
request, EPA's approval would apply to all areas within the State of 
Maine and NOX nonattainment NSR would not apply anywhere in 
Maine because: (1) All areas in Maine are designated attainment for the 
2008 8-hour ozone standards; and (2) Maine's existing SIP states that 
NOX nonattainment NSR does not apply in any area for which 
EPA has approved a section 182(f) NOX exemption. The State's 
proposed SIP revision would, however, also affect NOX 
nonattainment NSR in Maine because a source's location in the OTR would 
be removed from the SIP as the sole basis for applicability of those 
requirements, i.e., NOX nonattainment NSR would no longer 
apply in attainment areas in Maine by virtue of the State being part of 
the OTR.
    VOC nonattainment NSR restructuring under section 176A(a)(2).
    As noted above, in its February 11, 2013 request to EPA, Maine 
requested that EPA remove specific language from certain parts of its 
SIP consistent with the State's request under section 176A(a)(2) for 
VOC nonattainment NSR restructuring. Subsequently, by letter dated July 
5, 2013, Maine committed to provide notice and an opportunity for a 
hearing on the proposed SIP revisions and to resubmit its request to 
EPA for a SIP revision after the public participation process 
concludes. Because all areas in Maine are designated attainment for the 
2008 ozone standards, the Maine SIP's VOC nonattainment NSR permitting 
requirements only now apply in Maine because Maine is part of the OTR. 
Thus, the language that would be removed from Maine's SIP imposes 
requirements that now apply only by virtue of a source's location 
within the OTR. As noted earlier in this notice of proposed rulemaking, 
EPA will not take final action on the State's request for a SIP 
revision until: (1) The State's public participation process on the 
revisions has concluded and the State has resubmitted its request for a 
proposed SIP revision to EPA; and (2) until such time as EPA takes 
final action on the State's request for the section 176A(a)(2) VOC 
nonattainment NSR restructuring.
    The SIP revision would affect specific parts of two chapters of 
Maine's nonattainment NSR permitting regulations previously approved by 
EPA into the SIP. The first is Chapter 113 entitled ``Growth Offset 
Regulations'' which contains emissions offsets requirements for sources 
subject to nonattainment NSR. The second is Chapter 115 entitled 
``Emission License Regulation'' which includes generally applicable 
requirements for sources that must obtain an emissions license in 
Maine. EPA last approved amendments to Chapters 113 and 115 on February 
14, 1996 (61 FR 5690). If EPA takes final action to approve Maine's 
section 182(f) NOX exemption request and section 176A(a)(2) 
request for VOC nonattainment NSR restructuring, the Maine SIP 
provisions pertaining to nonattainment NSR permitting requirements for 
ozone arising from Maine's location in the OTR will no longer be 
necessary under 40 CFR 51.165. EPA is proposing to approve Maine's 
request to remove the SIP provisions contained in Chapters 113 and 115 
of Maine's regulations that impose nonattainment NSR for sources of VOC 
on the basis of the source's location in the OTR.
    More specifically, EPA is proposing to remove from Chapter 113 all 
references to the OTR as a basis for the applicability of VOC 
nonattainment NSR permitting requirements. Those references appear in 
section 1 (Applicability), section 2.C.1 (Ozone Nonattainment Areas), 
section 2.C.2 (Ozone Nonattainment Areas, Location of offsets), and 
section 3 (Exemptions). EPA also is proposing to remove references in 
Chapter 113 to the permissible location of emissions offsets for 
attainment areas (these provisions for attainment areas are only 
relevant if location in the OTR is a basis for nonattainment NSR 
applicability). These references appear in sections 2.C.3 (Ozone 
Nonattainment Areas) and 2.C.3.b. (Ozone Nonattainment Areas) of 
Chapter 113, and will not be relevant if the section 176A(a)(2) 
restructuring is approved, because new or modified major stationary 
sources of VOC located in areas attaining the ozone standard will no 
longer be required to obtain offsets. In Chapter 115, EPA proposes to 
remove the reference to the OTR in Sections V.B.2 (Criteria for 
Granting a License) and VI.B.2 (New sources and modifications, 
Nonattainment areas).
    If EPA takes final action approving the State's requests for a 
section 182(f) NOX exemption and a section 176A(a)(2) 
restructuring (and the associated SIP revisions described above), the 
Maine SIP's PSD permitting requirements would apply in lieu of the 
SIP's nonattainment NSR permitting requirements for any major new or 
modified stationary source of VOC and/or NOX located 
anywhere in the State of Maine.
    EPA is soliciting public comments on the issues discussed in this 
notice or on other relevant matters. 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 
New England Regional Office listed in the ADDRESSES section of this 
notice.

IX. Proposed Actions

    EPA is proposing to approve Maine's October 13, 2012 request for an 
exemption from the requirements for the control of NOX 
emissions contained in

[[Page 47259]]

section 182(f) of the Act in relation to the 2008 8-hour ozone 
standards. The exemption would apply throughout the entire State of 
Maine. EPA is also proposing to approve Maine's February 11, 2013 
request for a limited ``opt-out'' or ``restructuring'' of the section 
182(f) OTR requirements pertaining to VOC nonattainment NSR permitting, 
currently applicable in Maine only by virtue of Maine's location in the 
OTR, not by virtue of Maine having any areas designated nonattainment 
for the 2008 8-hour ozone standards. In addition, EPA is proposing to 
approve Maine's request for the SIP revisions described earlier in this 
notice.
    If EPA takes final action to approve Maine's requests, including 
the SIP revisions described above, the following consequences would 
result. First, any NOX RACT requirements that would 
otherwise have been necessary in Maine in relation to the 2008 8-hour 
ozone standard would now not be required. However, any NOX 
and/or VOC requirements earlier approved into Maine's SIP to implement 
regional haze requirements or requirements relating to prior, pre-2008, 
ozone standards, will remain in Maine's SIP. Second, nonattainment NSR 
permitting requirements for major new or modified stationary sources of 
NOX in Maine would no longer apply anywhere in the State. 
Third, the nonattainment NSR permitting requirements applicable to 
major new and modified stationary sources of VOC, which now apply 
throughout the entire State of Maine, would no longer apply in any area 
in Maine. Fourth, for major new and modified stationary sources of VOC 
and NOX throughout the entire State of Maine, the Maine 
SIP's PSD permitting requirements would apply in lieu of the 
nonattainment NSR permitting requirements. Finally, the requirements 
applicable to sources holding existing nonattainment NSR permits will 
remain in effect.
    As part of this action, EPA is proposing to revise certain 
provisions in Maine's SIP. The SIP revisions would affect specific 
parts of two chapters of Maine's nonattainment NSR permitting 
regulations previously approved by EPA into the SIP. The first is 
Chapter 113 entitled ``Growth Offset Regulations'' which contains 
emissions offsets requirements for sources subject to nonattainment 
NSR. The second is Chapter 115 entitled ``Emission License Regulation'' 
which includes generally applicable requirements for sources that must 
obtain an emissions license in Maine. More specifically, EPA is 
proposing to remove from Chapter 113 all references to the OTR as a 
basis for the applicability of VOC nonattainment NSR permitting 
requirements. Those references appear in section 1 (Applicability), 
section 2.C.1 (Ozone Nonattainment Areas), section 2.C.2 (Ozone 
Nonattainment Areas, Location of offsets), and section 3 (Exemptions). 
EPA also is proposing to remove references in Chapter 113 to the 
permissible location of emissions offsets for attainment areas (these 
provisions for attainment areas are only relevant if location in the 
OTR is a basis for nonattainment NSR applicability). These references 
appear in sections 2.C.3 (Ozone Nonattainment Areas) and 2.C.3.b. 
(Ozone Nonattainment Areas) of Chapter 113, and will not be relevant if 
the section 176A(a)(2) restructuring is approved, because new or 
modified major stationary sources of VOC located in areas attaining the 
ozone standard will no longer be required to obtain offsets. In Chapter 
115, EPA proposes to remove the reference to the OTR in Sections V.B.2 
(Criteria for Granting a License) and VI.B.2 (New sources and 
modifications, Nonattainment areas).

X. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
state's submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing state submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, these actions, merely propose to approve Maine's requests 
as meeting Federal requirements and do not impose additional 
requirements beyond those imposed by state law. For that reason, these 
proposed actions:
     Are not ``significant regulatory actions'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Do not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Are certified as not having significant economic impacts 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Do not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Do not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Are not economically significant regulatory actions based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Are not significant regulatory actions subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Are not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Do not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the Maine SIP is not approved to apply in Indian country 
located in the state, and EPA notes that it will not impose substantial 
direct costs on tribal governments or preempt tribal law.

    Authority:  42 U.S.C. 7401 et seq.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: July 18, 2013.
H. Curtis Spalding,
Regional Administrator, EPA New England.
[FR Doc. 2013-18831 Filed 8-2-13; 8:45 am]
BILLING CODE 6560-50-P