[Federal Register Volume 86, Number 83 (Monday, May 3, 2021)]
[Proposed Rules]
[Pages 23309-23323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-08825]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OAR-2020-0310; FRL-10019-11-OAR]
40 CFR Part 81
Response to Clean Air Act Section 176A Petition From Maine
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed action on petition.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
grant a Clean Air Act (CAA) section 176A petition submitted by the
state of Maine on February 24, 2020. The petition requests that the EPA
remove a large portion of Maine from the Ozone Transport Region (OTR)
based on that area's continued attainment with ozone National Ambient
Air Quality Standards (NAAQS) and technical analyses demonstrating that
the additional control of emissions from that portion of the state will
not significantly contribute to ozone attainment in any area in the
OTR. The OTR was established by the 1990 Clean Air Act (CAA or Act)
Amendments and includes the states of Connecticut, Delaware, Maine,
Maryland, Massachusetts, New Hampshire, New Jersey, New York,
Pennsylvania, Rhode Island, Vermont, the District of Columbia, and
portions of northern Virginia.
DATES: Comments. Comments must be received on or before June 17, 2021.
Public Hearing. A virtual public hearing will be held upon request. To
request a public hearing, please notify Ms. Pamela Long, U.S.
Environmental Protection Agency, Office of Air Quality Planning and
Standards, Air Quality Policy Division, (C504-01), Research Triangle
Park, NC 27711, telephone (919) 541-0641, fax number (919) 541-5509,
email address [email protected], no later than May 13, 2021.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2020-0310, at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the Web, Cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
Out of an abundance of caution, the EPA Docket Center and Reading
Room was closed to public visitors on March 31, 2020, to reduce the
risk of transmitting COVID-19. The EPA Docket Center and Reading Room
has since started the reopening process. Visitors will be considered on
an exception basis and allowed entrance by appointment only. Docket
Center staff will continue to provide remote customer service via
email, phone, and webform. For further information on EPA Docket Center
services and the current status, please visit https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: Questions concerning this proposed
notice should be directed to Holly DeJong, U.S. Environmental
Protection Agency, Office of Air Quality Planning and Standards, Air
Quality Policy Division, Mail code C539-01, Research Triangle Park, NC
27711, telephone (919) 541-4353; email at [email protected].
For more information pertaining to a public hearing on this
document, contact Pamela Long, U.S. Environmental Protection Agency,
Office of Air Quality Planning and Standards, Air Quality Policy
Division, (C504-01), Research Triangle Park, NC 27711; telephone number
(919) 541-0641; fax number (919) 541-5509; email at [email protected]
(preferred method of contact).
SUPPLEMENTARY INFORMATION:
I. General Information
Throughout this document wherever ``we,'' ``us,'' or ``our'' is
used, we mean the U.S. EPA.
The information in this Supplementary Information section of this
preamble is organized as follows:
I. General Information
A. Where can I get a copy of this document and other related
information?
B. What acronyms, abbreviations and units are used in this
preamble?
II. Executive Summary of the EPA's Proposed Decision on the Maine
CAA Section 176A Petition
III. Background and Legal Authority
[[Page 23310]]
A. Ozone Formation and Impacts
B. Sections 176A and 184 of the CAA and the OTR Process
C. Legal Standard for this Action
D. Previous Actions
IV. Maine CAA Section 176A Petition
A. Summary of the Maine CAA Section 176A Petition
B. Provisions Impacted by the Maine CAA Section 176A Petition
V. The EPA's Technical Assessment of the Maine CAA Section 176A
Petition
A. Description of the Technical Analysis Included in the Maine
CAA Section 176A Petition
B. The EPA's Technical Assessment of the Maine Section 176A
Petition
VI. The EPA's Proposed Action on the Maine CAA Section 176A Petition
VII. Judicial Review and Determinations Under Section 307(b)(1) of
the CAA
A. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this document will be posted at https://www.epa.gov/ozone-pollution/ozone-national-ambient-air-quality-standards-section-176a-petition-maine.
B. What acronyms, abbreviations and units are used in this preamble?
APA Administrative Procedures Act
BACT Best Available Control Technology
CAA or Act Clean Air Act
CAIR Clean Air Interstate Rule
CSAPR Cross State Air Pollution Rule
CFR Code of Federal Regulations
CMR Code of Maine Regulations
CTG Control Techniques Guideline
D.C. Circuit United States Court of Appeals for the District of
Columbia Circuit
DEP Department of Environmental Protection
EGU Electric Generating Unit
EPA U.S. Environmental Protection Agency
FIP Federal Implementation Plan
FR Federal Register
HYSPLIT Hybrid Single Particle Lagrangian Integrated Trajectory
I/M program Inspection and Maintenance Program
LAER Lowest Achievable Emission Rate
NAAQS National Ambient Air Quality Standard
NEI National Emissions Inventory
NNSR Nonattainment New Source Review
NOX Nitrogen Oxides
NSPS New Source Performance Standard
NSR New Source Review
ORVR Systems Onboard Refueling Vapor Recovery Systems
OTAG Ozone Transport Assessment Group
OTC Ozone Transport Commissio
OTR Ozone Transport Region
PM Particulate Matter
PTE Potential to Emit
RACT Reasonably Available Control Technology
SIP State Implementation Plan
SO2 Sulfur Dioxide
VOC Volatile Organic Compound
II. Executive Summary of the EPA's Proposed Decision on the Maine CAA
Section 176A Petition
On February 24, 2020, the state of Maine petitioned the EPA
pursuant to Clean Air Act (CAA) section 176A(a)(2) for the removal of
the state of Maine from the OTR except for 111 towns and cities
comprising the Androscoggin Valley,\1\ Down East \2\ and Metropolitan
Portland \3\ Air Quality Control Regions, commonly referred to as the
``Portland and Midcoast Ozone Areas.'' Maine contends that emissions
from northern and eastern Maine are not significant contributors to
ozone nonattainment in other states nor do they interfere with
maintenance of the ozone NAAQS in those Maine municipalities that would
remain in the OTR. Therefore, removing these areas from the OTR would
not degrade the air quality in Maine or in any other state. The
petition includes monitoring data and technical analyses to support a
demonstration that the areas requested to be removed from the OTR are
in attainment with the ozone NAAQS and that emissions from these areas
do not significantly contribute to ozone nonattainment in any area of
the OTR. For the reasons described in this notice, the EPA is proposing
to grant the petition on the basis that removing the areas of the state
requested to be removed from the OTR would not result in emissions
changes that would significantly contribute to nonattainment or
interfere with maintenance in any area of the OTR.
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\1\ 40 CFR 81.90 defines the Androscoggin Valley Interstate Air
Quality Control Region as Androscoggin County, Kennebec County, Knox
County, Lincoln County, Waldo County and parts of Franklin County,
Oxford County, Somerset County.
\2\ 40 CFR 81.181 defines the Down East Intrastate Air Quality
Control Region as Hancock County, Washington County and parts of
Penobscot County and Piscataquis County.
\3\ 40 CFR 81.78 defines the Metropolitan Portland Intrastate
Air Quality Control Region as Cumberland County, Sagadahoc County,
York County, and the towns of Brownfield, Denmark, Fryburg, Hiram,
and Porter.
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Section 176A(a) of the CAA provides the Administrator with the
authority to develop interstate transport regions for particular
pollutants where the Administrator determines that interstate transport
of air pollutants from one or more states contributes significantly to
violations of air quality standards in other states. In the 1990 CAA
Amendments, Congress created the OTR by statute under CAA section
184(a) to address the interstate transport of ozone pollution in the
Northeast and Mid-Atlantic regions of the United States (U.S.).
The creation of an interstate transport region requires
establishing a transport commission with representatives from each
state who make recommendations to mitigate interstate pollution. Model
rules and programs designed through the OTC (Ozone Transport
Commission) may be adopted by the individual states through their own
rulemaking processes. Under CAA section 184(c), the OTC may petition
the EPA to approve additional control measures to be applied within all
or part of the transport region. Maine seeks to remove portions of the
state from the OTR, thereby releasing those areas from OTC
recommendations and applicable control requirements established under
CAA section 184.
Section 176A(a)(1) of the CAA provides the Administrator with
authority to ``add any state or portion of a state to any [transport]
region . . . whenever the Administrator has reason to believe that the
interstate transport of air pollutants from such state significantly
contributes to a violation of the standard in the transport region.''
Conversely, CAA section 176A(a)(2) allows the Administrator to ``remove
any state or portion of a state from [a transport] region whenever the
Administrator has reason to believe that the control of emissions in
that state or portion of the state . . . will not significantly
contribute to the attainment of the standard in any area in the
region.''
For the reasons fully described in this notice, and in
consideration of monitoring data, technical demonstrations, and impacts
to air quality control regimes in the areas to be removed, the EPA
believes that the portion of Maine requested for removal from the OTR
does not contribute to a violation of any ozone standard in any area of
the OTR, and that further control of emissions from that portion of
Maine will not significantly contribute to attainment of any ozone
standard in any area of the OTR. Accordingly, the EPA is proposing to
grant the CAA section 176A petition filed by the state of Maine to
remove a portion of Maine from the OTR.
III. Background and Legal Authority
A. Ozone Formation and Impacts
Ground-level ozone causes a variety of negative effects on human
health, vegetation, and ecosystems. In humans, acute and chronic
exposure to ozone is associated with premature mortality and several
morbidity effects, such as asthma exacerbation. In ecosystems, ozone
exposure may cause visible foliar
[[Page 23311]]
injury, decrease plant growth, and affect ecological community
composition.
Ground-level ozone is predominantly a secondary air pollutant
created by chemical reactions between ozone precursors including
nitrogen oxides (NOX) and volatile organic compounds (VOCs)
in the presence of sunlight. Emissions from electric generating
utilities (EGUs), industrial facilities, motor vehicles, non-road
equipment, gasoline vapors, and chemical solvents are some of the major
anthropogenic sources of ozone precursors. The potential for ground-
level ozone formation tends to be highest during months with warmer
temperatures and stagnant air masses; therefore, ozone levels are
generally higher during the summer months.\4\ Increased temperatures
may also increase emissions of anthropogenic and biogenic VOC emissions
and can indirectly increase anthropogenic NOX emissions as
well (e.g., through increased electricity generation to power air
conditioning).
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\4\ Rasmussen, D.J. et. al. (2011) Ground-level ozone-
temperature relationship in the eastern US: A monthly climatology
for evaluating chemistry-climate models. Atmospheric Environment 47:
142-153.
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The EPA has regulated ozone pollution and the precursor emissions
that contribute to ozone for the last five decades.\5\ Currently, there
are two NAAQS in effect for ozone.\6\ On March 12, 2008, the EPA
promulgated a revision to the ozone NAAQS, lowering both the primary
and secondary standards to 75 ppb.\7\ On October 1, 2015, the EPA
lowered the primary and secondary standards to 70 ppb.\8\
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\5\ Primary and secondary NAAQS were first established for
photochemical oxidants in 1971. 36 FR 8186 (April 30, 1971). In
1979, the EPA revised the NAAQS to change the indicator from
photochemical oxidants to O3 and to revise the primary
and secondary standards. 44 FR 8202 (February 8, 1979). In 1997, the
EPA once again revised the primary and secondary standards for ozone
NAAQS. 62 FR 38856 (July 18, 1997). In 2015, the 1997 ozone NAAQS
were revoked. 80 FR 12264 (March 6, 2015).
\6\ The 1997 ozone NAAQS were revoked in 2015. 80 FR 12264
(March 6, 2015).
\7\ See National Ambient Air Quality Standards for Ozone, Final
Rule, 73 FR 16436 (March 27, 2008).
\8\ See National Ambient Air Quality Standards for Ozone, Final
Rule, 80 FR 65292 (October 26, 2015).
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In accordance with CAA section 107(d), the EPA designates areas as
``attainment'' (meeting the standard), ``nonattainment'' (not meeting
the standard) or ``unclassifiable'' (insufficient data to classify).
States with areas designated as nonattainment must develop and submit
State Implementation Plans (SIPs) to the EPA with the goal of attaining
and maintaining the level of the NAAQS by the applicable attainment
deadline. In this way, the EPA and states work collaboratively to
establish and implement nonattainment area planning requirements that
are designed to bring areas into attainment of the NAAQS by the
applicable attainment deadline. A key step in ensuring that areas
attain and maintain ozone NAAQS is to assess and understand the
potential for ozone source formation in a given area, including the
potential for upwind states' emissions to impact ozone formation in
downwind states.
Precursor emissions can be transported downwind directly or, after
transformation in the atmosphere, as ozone or secondary ozone
precursors. Studies have established that ozone formation, atmospheric
residence, and transport can occur on a regional scale (i.e., hundreds
of miles) over much of the eastern U.S., with elevated concentrations
occurring in rural as well as metropolitan areas.\9\ Additionally,
observational studies have demonstrated the presence of ozone and ozone
precursor transport, and documented the impact that upwind emissions
have on high concentrations of ozone pollution.\10\ As a result of
ozone transport, ozone pollution levels in a given location are
impacted by a combination of local emissions and emissions from upwind
sources. The transport of ozone across state borders compounds the
difficulty for downwind states to be in attainment with ozone NAAQS.
While substantial progress has been made in reducing ozone in many
urban areas, regional-scale ozone transport is still a major component
of peak ozone concentrations during the summer ozone season.
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\9\ National Research Council. 1991. Rethinking the Ozone
Problem in Urban and Regional Air Pollution. Washington, DC: The
National Academies Press. https://doi.org/10.17226/1889.
\10\ Downs, T., R. Fields, R. Hudson, I. Kheirbek, G. Kleiman,
P. Miller, and L. Weiss. 2010. The Nature of the Ozone Air Quality
Problem in the Ozone Transport Region: A Conceptual Description.
Northeast States for Coordinated Air Use Management.
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B. Sections 176A and 184 of the CAA and the OTR Process
Subpart 1 of part D of title I of the CAA provides the general plan
requirements for designated nonattainment areas. This subpart includes
provisions governing the development of transport regions to address
the interstate transport of pollutants that contribute to NAAQS
violations. In particular, section 176A(a) of the CAA provides that, on
the EPA's own motion or by a petition from the Governor of any state,
whenever the EPA has reason to believe that the interstate transport of
air pollutants from one or more states contributes significantly to a
violation of the NAAQS in one or more other states, the EPA may
establish, by rule, a transport region for such pollutant that includes
such states. The provision further provides that the EPA may add any
state or portion of a state to any transport region whenever the
Administrator has reason to believe that the interstate transport of
air pollutants from such state significantly contributes to a violation
of the standard in the transport region.
Section 176A(b) of the CAA provides that when the EPA establishes a
transport region, the Administrator shall establish an associated
transport commission, comprised of (at a minimum) the following: The
Governor or her or his designee of each covered state, the EPA
Administrator or a designee, the Regional EPA Administrator or a
designee, and an air pollution control official appointed by the
Governor of each state. The purpose of the transport commission is to
assess the degree of interstate transport throughout the transport
region and assess and recommend control strategies to the EPA to
mitigate such interstate transport.
Subpart 2 of part D of title I of the CAA provides plan
requirements specific to the ozone NAAQS. Consistent with CAA section
176A, found in subpart 1, subpart 2 includes specific provisions
focused on the interstate transport of ozone. CAA section 184(a)
establishes a single transport region for ozone--the OTR--comprising
the states of Connecticut, Delaware, Maine, Maryland, Massachusetts,
New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island,
Vermont, and the Consolidated Metropolitan Statistical Area for the
District of Columbia, which includes certain portions of northern
Virginia. The Virginia counties and cities included in the OTR are
Arlington County, Fairfax County, Loudoun County, Prince William
County, Stafford County, Alexandria City, Fairfax City, Falls Church
City, Manassas City, and Manassas Park City.
Section 184(b) of the CAA establishes specific control requirements
that each state in the OTR is required to implement within the state,
including certain controls on sources of NOX and VOCs. These
control requirements are required to be implemented statewide in any
state included within the OTR, regardless of ozone attainment
status.\11\
[[Page 23312]]
Under CAA section 184(b)(1)(A), OTR states must include enhanced
vehicle emissions inspection and maintenance (I/M) programs in their
SIPs.\12\ Under CAA section 184(b)(2), major stationary sources of VOCs
in OTR states are subject to the same requirements that apply to major
sources in designated ozone nonattainment areas classified as
Moderate.\13\ Thus, the state must adopt rules to apply nonattainment
new source review (NNSR) and reasonably available control technology
(RACT) (pursuant to CAA section 182(b)(2)) provisions for major VOC
sources statewide. Under CAA section 184(b)(2) states must also
implement Stage II gasoline refueling vapor recovery programs,
incremental to vehicle Onboard Refueling Vapor Recovery achievements,
or measures that achieve comparable emissions reductions for both
attainment and nonattainment areas.\14\
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\11\ We note that one exception to the statewide applicability
of these control requirements applies to Virginia, as only a portion
of that state is included within the OTR.
\12\ In the OTR, enhanced vehicle inspection and maintenance
programs are required in metropolitan statistical areas in the OTR
with a 1990 Census population of 100,000 or more.
\13\ Section 184(b)(2) of the CAA provides that, for purposes of
implementing these requirements, a major stationary source shall be
defined as any source that emits or has the potential to emit at
least 50 tons per year of VOCs.
\14\ See 72 FR 28772, May 16, 2012, Air Quality: Widespread Use
for Onboard Refueling Vapor Recovery and Stage II Waiver.
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Section 182(f) of the CAA requires states to apply the same
requirements to major stationary sources of NOX as are
applied to major stationary sources of VOCs under subpart 2. Thus, the
same NNSR and RACT requirements that apply to major stationary sources
of VOC in the OTR also apply to major stationary sources of
NOX.\15\ CAA section 182(f) provides for a NOX
waiver, or an exemption to the NOX requirements, where the
Administrator determines that such NOX reductions would not
contribute to the attainment of the NAAQS in an area. Areas granted a
NOX waiver under CAA section 182(f) may be exempt from
certain requirements of the EPA's motor vehicle I/M program regulations
and from certain federal requirements of general and transportation
conformity.\16\
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\15\ See 57 FR 55622 (Nitrogen Oxides Supplement to the General
Preamble, published November 25, 1992).
\16\ As stated in the EPA's I/M (November 5, 1992; 57 FR 52950)
and conformity rules (60 FR 57179 for transportation rules and 58 FR
63214 for general rules), certain NOX requirements in
those rules do not apply where the EPA grants an areawide exemption
under CAA section 182(f).
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C. Legal Standard for This Action
Section 176A(a)(2) of the CAA states that the Administrator may
remove any state or portion of a state from the Ozone Transport Region
whenever the Administrator has reason to believe that the control of
emissions in that state or portion of that state pursuant to its
inclusion in the transport region will not significantly contribute to
the attainment of the standard in any area in the region. The provision
does not provide further methodology or criteria for the Administrator
to apply other than this language when determining whether to remove a
state or portion of a state from the OTR. Therefore, the meaning of
this language is ambiguous, and the EPA has the authority to exercise
discretion in its expertise to interpret this language and identify
relevant criteria and develop a reasonable methodology in doing so.
See, e.g., Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43 (1984);
Smiley v. Citibank, 517 U.S. 735, 744-45 (1996). As explained in this
action, in determining whether to grant the state of Maine's petition
the EPA intends to draw upon its interpretations of the CAA's suite of
interstate pollution transport provisions, taking into account any
legal precedents established by prior EPA actions and associated court
decisions.
The EPA has never taken final action to remove any state or portion
of a state from the OTR under section 176A(a)(2) of the CAA.\17\ The
Agency has in recent years acted pursuant to CAA section 176A(a)(1) to
deny a request to expand the OTR,\18\ but did not in that action have
cause to interpret the operative language in CAA section 176A.\19\
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\17\ On August 5, 2013, the EPA issued a proposed rule,
``Approval and Promulgation of Air Quality Implementation Plans;
Maine; Oxides of Nitrogen Exemption and Ozone Transport
Restructuring'' (78 FR 47253). In this notice, the EPA proposed to
approve Maine's request for a limited ``restructuring'' to remove
the OTR-related VOC nonattainment new source requirements (NNSR),
but the EPA did not take final action on this proposal.
\18\ 82 FR 51238 (November 3, 2017).
\19\ The EPA denied the request from several states in the OTR
to add an additional nine states to the transport region on the
basis that Congress' use of the term ``may'' in CAA section 176A(a)
granted the Administrator reasonable discretion in determining
whether or not to grant the petition, and that other statutory
authorities the EPA had historically relied upon to address
interstate transport provided advantages over expanding the OTR. The
D.C. Circuit upheld the EPA's denial of the section 176A petition to
expand the OTR, noting that its review of the EPA's denial was
``extremely limited and highly deferential,'' and that even if
petitioners had met CAA section 176A(a)(1)'s criterion for expanding
the OTR, ``the statute provides only that EPA `may' expand the
region, not that it `shall' or `must' do so.'' New York v. EPA, 921
F.3d 257, 261-62 (D.C. Cir. 2019).
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Section 176A(a)(2) of the CAA does not expressly reference other
statutory provisions, but the EPA believes it is appropriate to
interpret the key terms in the section (i.e., ``control of emissions .
. . will not significantly contribute to the attainment of the
standard'' and ``in any area in the region'') within the context of and
consistently with other parts of the CAA that govern the interstate
transport of ozone pollution, taking into account relevant facts and
circumstances and the EPA's past approaches to addressing interstate
ozone transport.
The CAA provision that states and the EPA have primarily relied
upon to address interstate pollution transport is section
110(a)(2)(D)(i)(I) of the CAA, often referred to as the ``good
neighbor'' provision. The provision requires all states to submit SIPs
that contain adequate provisions prohibiting any source or other type
of emissions activity within the state from emitting any air pollutant
in amounts which ``will contribute significantly'' to nonattainment in,
or interfere with maintenance by, any other state with respect to any
NAAQS. Thus, each state is required to submit a SIP that demonstrates
the state is adequately controlling sources of emissions that would
impact another states' air quality relative to the NAAQS in violation
of the good neighbor provision. However, if a state does not adequately
address the good neighbor provision requirements in a SIP submission,
the CAA requires that the EPA must address the requirements of the good
neighbor provision in the state's stead. Specifically, if the EPA
disapproves a state's SIP submission or if the EPA finds that a state
has failed to submit a required SIP, then the EPA must promulgate a
federal implementation plan (FIP) within two years, unless the state
corrects the deficiency, and the EPA approves the plan or plan revision
before the EPA promulgates a FIP.\20\
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\20\ CAA section 110(c)(1).
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To address the regional transport of ozone pursuant to the CAA's
good neighbor provision, the EPA has promulgated four regional
interstate transport rules focusing on the reduction of NOX
emissions, as the primary meaningful precursor to address regional
ozone transport across state boundaries, from certain sources located
in states in the eastern half of the U.S.21 22 The four
interstate transport
[[Page 23313]]
rulemakings are the NOX SIP Call,\23\ Clean Air Interstate
Rule (CAIR),\24\ the Cross-State Air Pollution Rule (CSAPR),\25\ and
the Cross-State Air Pollution Rule Update (CSAPR
Update).26 27
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\21\ For purposes of these rulemakings, the western U.S. (or the
West) consists of the 11 western contiguous states of Arizona,
California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon,
Utah, Washington, and Wyoming.
\22\ Two of these rulemakings also addressed the reduction of
annual NOX and sulfur dioxide (SO2) emissions
for the purposes of addressing the interstate transport of
particulate matter pollution pursuant to the good neighbor
provision.
\23\ 62 FR 57356 (October 27, 1998).
\24\ 70 FR 25162 (May 12, 2005).
\25\ 76 FR 48208 (August 8, 2011).
\26\ 81 FR 74504 (October 26, 2016).
\27\ In December of 2018, the EPA also promulgated a
determination regarding remaining good neighbor obligations under
the 2008 ozone NAAQS for the CSAPR region (referred to as the
``CSAPR Close Out'') at 83 FR 65878, but that determination was
vacated by the D.C. Circuit. New York v. EPA, No. 19-1019, Judgement
at 4 (D.C. Circuit October 1, 2019).
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Through the development and implementation of CSAPR and the CSAPR
Update, the EPA, working in partnership with the states, developed a
four-step interstate transport framework to interpret and address the
requirements of the good neighbor provision. The four steps are: (1)
Identifying downwind air quality monitors (known as ``receptors'') that
are expected to have problems attaining or maintaining clean air
standards (i.e., NAAQS); (2) identifying upwind states that impact
those downwind air quality problems sufficiently such that they are
considered ``linked'' and therefore warrant further review and
analysis; (3) identifying the emissions reductions necessary (if any),
considering cost and air quality factors, to prevent linked upwind
states identified in step 2 from contributing significantly to
nonattainment or interfering with maintenance of the NAAQS at the
locations of the downwind air quality problems; and (4) adopting
permanent and enforceable measures needed to achieve those emissions
reductions.
Given the use of the phrase ``significantly contribute to [ ]
attainment'' in CAA section 176A(a)(2), the EPA believes it is
reasonable to look to the 4-step interstate transport framework to
guide its analysis of whether a state or portion of a state has met the
necessary condition for removal from the OTR in CAA section 176A(a)(2).
Under Step 1 of the interstate transport framework, the EPA has
interpreted the term ``will'' in the phrase ``will significantly
contribute'' in section 110(a)(2)(D)(i)(I) by looking at current
downwind air quality problems and whether those air quality problems
will persist in a future year, i.e., by focusing its analysis regarding
downwind interstate transport impacts on an analytic year in the
future. In its transport rulemakings, the EPA has considered current
monitored air quality data in addition to future projections ``because
`will' can mean either certainty or indicate the future tense,'' and
considering present-day data to inform the projected identification of
downwind air quality problems ``give[s] effect to both interpretations
of the word.'' North Carolina v. EPA, 531 F.3d 896, 913-14 (D.C. Cir.
2008). See 63 FR 57356, 57375 (Oct. 27, 1998) (NOX SIP Call)
(relying on both monitored and modeled data); 70 FR 25162, 25241 (May
12, 2005) (CAIR); 81 FR 74504, 74517 (October 26, 2016) (CSAPR
Update).\28\ Specifically, in those rules, the EPA explained that it
had the most confidence in its projections of nonattainment for those
counties that also measure nonattainment for the most recent period of
available ambient data. 81 FR 74517, 74531. In the CSAPR Update,
receptors that had clean measured data but were projected to have
nonattainment problems in the future-year modeling were denoted by the
EPA as maintenance-only receptors, acknowledging that while currently
attaining the NAAQS, such areas could violate the standard in the
future under certain meteorological conditions. The D.C. Circuit has
upheld this balance struck by the EPA in considering historical
monitored data as well as future projected modeled data as a method for
identifying downwind air quality problems at Step 1. See, e.g.,
Wisconsin v. EPA, 938 F.3d 303, 326 (D.C. Cir. 2019).
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\28\ The EPA did not consider current monitored data in
conjunction with modeled projections of air quality in a future year
in CSAPR because the most recent monitoring data prior to CSAPR's
promulgation reflected effects of the unlawful CAIR. 76 FR 48208,
48230 (August 8, 2011).
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In CSAPR and the CSAPR Update, the EPA used a threshold of one
percent of the NAAQS to determine whether a given upwind state was
``linked'' at step 2 of the four-step interstate transport framework
and would, therefore, contribute to downwind nonattainment and
maintenance sites identified in step 1. If a state's impact did not
equal or exceed the one percent threshold, the upwind state was not
``linked'' to a downwind air quality problem, and the EPA therefore
concluded that the state will not significantly contribute to
nonattainment or interfere with maintenance of the NAAQS in the
downwind states. However, if a state's impact equaled or exceeded the
one percent threshold, the state's emissions were further evaluated in
step 3, taking into account both air quality and cost considerations,
to determine what, if any, emissions reductions might be necessary to
address the good neighbor provision.
In this action, these first two steps of the 4-step interstate
transport framework are particularly informative to analyze the
standard for removal of areas from the OTR established by CAA section
176A(a)(2). We acknowledge that the specific inquiry posed by the OTR
removal provision does not perfectly align with the inquiry in the CAA
section 110 good neighbor provision or in CAA section 176A(a)(1). Read
literally, rather than identify significant contribution of emissions
to nonattainment or maintenance receptors--that is, determining whether
a state's emissions are large enough that they negatively impact air
quality in another state and thus may warrant the imposition of control
measures--CAA section 176A(a)(2) presents a different but related
question: Whether OTR controls in a state will not significantly
contribute to attainment anywhere in the OTR. Despite the framing of
CAA section 176A(a)(2) as significant contribution to attainment rather
than significant contribution to nonattainment, we think CAA section
176A(a)(2) is best read within the context of the statutory section as
a whole, and in conjunction with the other CAA provisions addressing
interstate pollution transport, and therefore focused on impacts to
areas that are struggling with attaining or maintaining the NAAQS. We
acknowledge that one could read CAA section 176A(a)(2) as asking the
EPA to only analyze OTR areas that are already in attainment and
determine whether such areas would remain so after the removal of a
state or portion of a state from the OTR per CAA section
176A(a)(2).\29\
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\29\ We note that this interpretation would not address whether
the reductions achieved by OTR controls in a state are also
effective at ameliorating air quality in areas that are in
nonattainment. In addition, it would require the EPA to establish an
entirely new framework to analyze how emissions control measures
``significantly contribute'' to attainment--a standard that would
not necessarily be equivalent to or in harmony with the
``significant contribution'' standard of CAA section
110(a)(2)(D)(i)(I).
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However, we think a better interpretation of CAA section 176A(a)(2)
is that it is establishing a standard that is the inverse of the
question presented in CAA section 176A(a)(1). At base, CAA section
176A(a) presents two authorities--the Administrator may add a state or
a portion of a state to the transport region whenever the Administrator
has reason to believe that pollutants from that state significantly
contribute to a violation of the NAAQS in the transport region and may
remove a state or a portion of a state whenever the Administrator has
reason to believe
[[Page 23314]]
that the state's continued inclusion in the OTR will not be required
for attainment in the transport region, i.e., that the petitioning
state is not significantly contributing to air quality problems in the
region and will not so contribute if the state is removed from the OTR.
Interpreting the statute in this way means that under CAA section
176A(a)(2), although there is no explicit reference to significant
contribution to nonattainment or maintenance, the EPA's inquiry focuses
on whether the state, or portion of the state, to be removed is
significantly contributing or will contribute to nonattainment of the
standard in the OTR. This inquiry, therefore, does not solely focus on
consequences to areas that are already in attainment.
In determining whether removal is warranted under section
176A(a)(2), the EPA must also interpret the phrase ``control of
emissions in that state or portion of that state pursuant to this
section.'' The EPA proposes that ``controls'' refers to new controls
that would be required under CAA section 184(b) if the state or portion
of the state were to remain in the OTR, as opposed to controls that the
state has already adopted as required by the CAA due to its inclusion
in the OTR. We believe interpreting ``controls'' in this manner gives
effect to the forward-looking nature of the provision, which asks the
Administrator to analyze whether removal of the state or portion of the
state from the OTR ``will'' have the effect of contributing to air
quality problems in any area in the OTR. In undertaking that forward-
looking analysis, we think it is reasonable to assume that existing,
SIP-approved controls that were adopted by the state due to its
inclusion in the OTR will remain in place. Under the CAA, a state
seeking to revise its SIP must undergo a section 110(l) demonstration.
Section 110(l) of the CAA states that the Administrator cannot approve
a SIP revision if the revision would interfere with any applicable
requirement concerning attainment and reasonable further progress
(RFP), or any other applicable requirement of the CAA. Therefore, the
EPA will only approve a SIP revision that removes or modifies control
measures after the state has demonstrated that such removal or
modification will not interfere with attainment of the NAAQS, Rate of
Progress (ROP), RFP or any other applicable requirement of the CAA.
States may demonstrate a revision's noninterference with NAAQS-
related requirements by substituting one measure with another that
achieves equivalent or greater emissions reductions or air quality
benefit or by preparing an air quality analysis showing that removing
the measure will not interfere with other applicable requirements
(i.e., without a substitute measure).\30\ Additionally, for areas that
do not have an attainment demonstration, the EPA would consider
alternative analyses to demonstrate noninterference on a case-by-case
basis. The level of rigor in the alternative demonstration would vary
depending on the nature of the requirement, its potential impact on air
quality in the area, and the air quality of the area in which the
requirement applies.
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\30\ 78 FR 68378, 68382 (November 14, 2013).
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Moreover, this interpretation of CAA section 176A(a)(2) is
consistent with the EPA's treatment of nonattainment areas seeking
redesignation to attainment under CAA section 107(d)(3). States seeking
redesignation of a nonattainment area to attainment are required to
demonstrate that the area will maintain the NAAQS, per CAA section
107(d)(3)(E)(iv) and CAA section 175A. In making demonstrations of
maintenance, states perform air quality modeling or emissions
projections showing that existing control requirements are sufficient
to maintain the NAAQS in question. However, once redesignated, a state
may seek revision of its SIP to remove nonattainment SIP measures that
are not necessary to maintain the NAAQS, subject to a section 110(l)
demonstration.\31\ We, therefore, think the analysis under CAA section
176A(a)(2) should, like a CAA section 175A maintenance demonstration,
assume continued implementation of existing OTR-control measures even
though such measures would no longer be statutorily mandated once the
EPA removes a state or portion of the state from the OTR. As in the
case of an area redesignated to attainment, a state could only stop
actively implementing those measures and remove them from its SIP after
satisfying its obligation under section 110(l), as discussed earlier.
We note that in submitting its petition to the EPA to remove portions
of the state from the OTR, Maine committed to retaining all existing
OTR control measures in its SIP.
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\31\ Per CAA section 175A(d) and the EPA's longstanding
guidance, control measures that the state shows are no longer
necessary for maintenance of the NAAQS must be retained as
contingency provisions in the maintenance plan, to be implemented in
the event of a subsequent violation of the NAAQS. See Procedures for
Processing Requests to Redesignate Areas to Attainment, September 4,
1992.
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To establish the proper geographic scope of the EPA's CAA section
176A(a)(2) ``significant contribution'' analysis, another phrase in the
provision must be interpreted: ``any area in the region.'' The EPA
proposes to interpret the phrase ``any area in the region'' to mean all
existing areas in the OTR, including areas within the petitioning
state. Here, this would include all areas of Maine, because the entire
state is included in the OTR as established under section 184. However,
we recognize that it is possible that Congress intended the EPA to
focus primarily on interstate impacts within the OTR, rather than
impacts within the petitioning state. Therefore, the Agency is
requesting comment on this alternative interpretation, as set forth in
more detail below.
Read literally, ``any'' is a broad term that, in this context,
encompasses areas within the petitioning state because they are
currently in the OTR. However, case law recognizes that `` `any' means
different things depending upon the setting.'' Nixon v. Missouri
Municipal League, 541 U.S. 125, 132 (2004); see also Small v. U.S., 544
U.S. 385, 388 (2005) (``The word `any' considered alone cannot answer
[the] question''). Here, aspects of the statutory structure and context
indicate that ``any'' may reasonably be interpreted to have a narrower
scope than all areas of the current OTR. For instance, it could be
relevant that the provision at issue is part of CAA section 176A, which
is titled, ``Interstate Transport Commissions,'' and the provision at
issue is located within the subsection entitled ``Authority to
Establish Interstate Transport Regions.'' The basis under CAA section
176A(a) for creating or expanding a transport region is the interstate
effects of air pollution. Further, under the CAA's cooperative
federalism scheme, states retain the primary regulatory role in
developing and implementing the necessary emissions reductions within
their borders to meet the air quality standards established by the EPA.
See CAA section 101(a)(3). If a state's removal from the OTR were
projected to have negative impacts on other areas within the state,
under the CAA that state would retain jurisdiction, authority, and
responsibility to address such air quality problems in the first
instance. See, e.g., CAA sections 110, 172, 181, and 182. Rejecting a
state's petition to be removed from the OTR solely on the basis of
intrastate impacts could be seen as going beyond the purpose of CAA
section 176A, which was promulgated to address the interstate effects
of air pollution, i.e., a problem in which
[[Page 23315]]
affected states might otherwise have no recourse.
Nonetheless, it is also possible that Congress envisioned that the
grounds for removing an area from the OTR should require a different
bar (i.e., a demonstration that removal would not cause air quality
problems in other states and in one's own state) than the conditions
for adding a new area to a transport region (which are limited to out-
of-state impacts). This broader reading of the term ``any'' in this
context also comports with the overall public health and welfare
purposes of the CAA. In this action, as explained below, under either
interpretation, the EPA proposes that Maine's petition may be granted,
because its own emissions' impact on itself do not--and are not
expected to if the petition is granted--contribute to ozone NAAQS
attainment problems within the state. Therefore, we propose to apply
the broader interpretation, wherein ``any area of the region''
encompasses all current areas of the OTR, including the state of Maine.
We request comment on both interpretations of the phrase ``any area of
the region.''
Turning back to the provision as a whole, informed by the backdrop
and context of other CAA provisions addressing interstate pollution
transport and the states' and the EPA's actions addressing those
provisions, we think it is reasonable to interpret CAA section
176A(a)(2) in a manner consistent with EPA's 4-step interstate
transport framework, and in particular here, Steps 1 and 2. Under this
interpretation, the EPA determines whether air quality problems exist
in the transport region (including the state or area of a state
petitioned to be removed) based on projected air quality modeling and
also current monitored data. If so, the EPA then determines whether the
state (or portion of a state) to be removed from the OTR is
contributing less than one percent of the NAAQS to those problems,
indicating that the state (or portion of a state) is not significantly
contributing to air quality problems in the OTR, and that additional
OTR controls in that state (or portion of that state) and continued OTR
membership are, therefore, unnecessary for attainment of the NAAQS in
the OTR. Applying that framework to the question presented by CAA
section 176A(a)(2), we think a reasonable interpretation requires the
Administrator to identify whether there are ambient air monitoring
sites in the OTR that either are projected to be in nonattainment based
on modeling data, or potentially struggle with maintenance or are
currently violating the NAAQS based on monitored data, and whether the
area petitioned to be removed from the transport region contributes
below one percent of the NAAQS to those monitors.
D. Previous Actions
Consistent with the 1990 CAA Amendments, nine Maine counties were
designated as nonattainment of the now-revoked 1979 1-hour NAAQS (0.12
parts per million (ppm)). York, Cumberland, Sagadahoc, Androscoggin,
Kennebec, Knox, and Lincoln Counties were classified as Moderate
nonattainment areas. Waldo and Hancock Counties were classified as
Marginal nonattainment areas.
Maine had two nonattainment areas under the now-revoked 1997 8-hour
ozone standard. The Portland Ozone Nonattainment area consisted of 56
cities and towns in York, Cumberland, and Sagadahoc Counties, along
with the town of Durham in Androscoggin County, and was classified as
Marginal for the 1997 ozone standard. The Hancock, Knox, Lincoln, and
Waldo Counties Ozone Nonattainment Area (also known as the Midcoast
area) consisted of 55 coastal towns and islands in Hancock, Knox,
Lincoln, and Waldo counties and was designated as nonattainment under
Subpart 1 for the 8-hour ozone standard. Maine was designated
``Attainment/Unclassifiable'' statewide for both the 2008 and 2015 8-
hour ozone standards of 0.075 ppm and 0.070 ppm, respectively.
As previously discussed, Section 184(b) of the CAA established
certain control requirements that each state in the OTR is required to
implement within the state. Section 182(f) of the CAA Amendments allows
for the suspension of the OTR stationary source NOX
requirements based on a demonstration that additional NOX
reductions would not produce net ozone air quality benefits in the OTR.
Maine has petitioned for and has been granted the following CAA section
182(f) NOX waivers.
On December 26, 1995 (60 FR 66748), the EPA approved an exemption
request for the Northern Maine area from CAA section 182(f)
NOX requirements. This action exempted the Oxford, Franklin,
Somerset, Piscataquis, Penobscot, Washington, Aroostook, Hancock and
Waldo counties from the requirements to implement NOX
control measures for existing stationary sources, NNSR for new sources
and modifications that are major for NOX, NOX
RACT requirements, the NOX-related general conformity
provisions, and the NOX-related transportation conformity
provisions now contained in 40 CFR 93.119.\32\
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\32\ Transportation and general conformity requirements only
apply in nonattainment areas and areas redesignated to attainment
with an approved CAA section 175A maintenance plan. See CAA section
176(c)(5). Transportation and general conformity do not apply in
attainment areas in the OTR.
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On February 3, 2006 (71 FR 5791), the EPA approved a request for an
exemption for a similar area in northern Maine (specifically Aroostook,
Franklin, Oxford, Penobscot, Piscataquis, Somerset, Washington, and
portions of Hancock and Waldo Counties) under the 1997 ozone standard.
On July 29, 2014 (78 FR 43945), the EPA approved the state of
Maine's request for an exemption from the NOX requirements
contained in section 182(f) of the CAA for the entire state of Maine
for the 2008 ozone standard. The CAA does not provide a similar VOC
waiver process, and major stationary sources of VOC remain subject to
NNSR and RACT requirements throughout the entire state of Maine.
In addition to the NOX waivers under CAA section 182(f),
Maine requested and was granted an OTR restructuring with respect to
enhanced I/M requirements.\33\ (66 FR 1873; January 10, 2001). While
the Maine I/M rule did not meet all requirements of the EPA's final
rule for enhanced I/M, the EPA determined that the implementation of an
enhanced I/M program in Maine in place of the approved Maine I/M rule
would not significantly contribute to attainment in any other state in
the OTR.
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\33\ The EPA's I/M rule was established on November 5, 1992 (57
FR 52950). The EPA made significant revisions to the I/M rule on
September 18, 1995 (60 FR 48035) and on July 25, 1996 (61 FR 39036).
Maine is subject to the requirements of the Act for an I/M program
in the Portland, Maine area.
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IV. Maine CAA Section 176A Petition
A. Summary of the Maine CAA Section 176A Petition
On February 24, 2020, the state of Maine petitioned the EPA
pursuant to CAA section 176A(a)(2) for the removal of the state of
Maine from the OTR with the exception of the 111 towns and cities
listed in Table 1 comprising the Portland and Midcoast Ozone Areas.
[[Page 23316]]
Table 1--Maine Towns and Cities To Remain in the Ozone Transport Region
------------------------------------------------------------------------
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Androscoggin County (includes only the following town): Durham.
Cumberland County (includes only the following towns and cities):
Brunswick, Cape Elizabeth, Casco, Cumberland, Falmouth, Freeport, Frye
Island, Gorham, Gray, Harpswell, Long Island, New Gloucester, North
Yarmouth, Portland, Pownal, Raymond, Scarborough, South Portland,
Standish, Westbrook, Windham, and Yarmouth.
Hancock County (includes only the following towns and cities): Bar
Harbor, Blue Hill, Brooklin, Brooksville, Cranberry Isles, Deer Isle,
Frenchboro, Gouldsboro, Hancock, Lamoine, Mount Desert, Sedwick,
Sorrento, Southwest Harbor, Stonington, Sullivan, Surry, Swans Island,
Tremont, Trenton, and Winter Harbor.
Knox County (includes only the following towns and cities): Camden,
Criehaven, Cushing, Friendship, Isle au Haut, Matinicus Isle, Muscle
Ridge Shoals, North Haven, Owls Head, Rockland, Rockport, St. George,
South Thomaston, Thomaston, Vinalhaven, and Warren.
Lincoln County (includes only the following towns and cities): Alna,
Boothbay, Boothbay Harbor, Breman, Bristol, Damariscotta, Dresden,
Edgecomb, Monhegan, Newcastle, Nobleboro, South Bristol, Southport,
Waldoboro, Westport, and Wiscasset.
Sagadahoc County (includes all towns and cities).
Waldo County (includes only the following town): Islesboro.
York County (includes only the following towns and cities): Alfred,
Arundel, Berwick, Biddeford, Buxton, Dayton, Eliot, Hollis, Kennebunk,
Kennebunkport, Kittery, Limington, Lyman, North Berwick, Ogunquit, Old
Orchard Beach, Saco, Sanford, South Berwick, Wells, and York.
------------------------------------------------------------------------
The Maine Department of Environmental Protection (Maine DEP)
provided an analysis purporting to demonstrate that Maine's emissions
are an insignificant contributor to the nonattainment for the 8-hour
ozone NAAQS in other states and in those areas in Maine that will
remain in the OTR. Maine's analysis consists of modeling ``back
trajectories'' for ozone exceedance days in the 2016-2018 period
recorded at monitoring locations in southern New England and in Maine,
EPA source-apportionment modeling results, and emissions-inventory data
for Maine and the OTR.\34\ The EPA's assessment of the CAA section 176A
petition is discussed in Section V.
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\34\ Back trajectory analyses use interpolated measured or
modeled meteorological fields to estimate the most likely central
path over geographical areas that an air parcel travels before
reaching a specific location at a given time.
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B. Provisions Impacted by the Maine CAA Section 176A Petition
If the EPA takes final action granting Maine's petition, the
following consequences would result. First, for areas to be removed
from the OTR, different requirements would become applicable under the
New Source Review (NSR) construction permitting program. In these
areas, Maine's minor NSR and Prevention of Significant Deterioration
(PSD) permitting programs would apply to ozone (NOX and VOC)
in lieu of the Nonattainment New Source Review (NNSR) permitting
requirements that currently apply. However, the areas remaining in the
OTR would continue to be subject to the NNSR permitting requirements.
In addition, Maine could alter the geographic applicability of its
motor vehicle I/M program through a SIP revision. Such a change would
only have a minimal impact as the majority of the counties will remain
within the OTR.\35\ Regarding stage II refueling vapor recovery
programs for motor vehicles, granting Maine's petition would not impact
emissions because the EPA previously approved the state's request to
decommission the program, under the reasoning that emissions reductions
resulting from the program are now accomplished with on-board vapor
recovery equipment installed at the time of vehicle manufacture.\36\
Finally, upon approval of Maine's petition, only the portion of the
state remaining in the OTR would be required to adopt ozone RACT
requirements. However, RACT requirements already adopted in Maine's SIP
could only be removed if the state submitted a SIP revision and
satisfies the CAA's anti-backsliding provisions of section 110(l).
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\35\ The six towns within Cumberland county that are part of the
petition contain only five percent of the county's population.
\36\ See FR 82 32480 (July 14, 2017).
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In the February 24, 2020, petition to remove areas of the state
from the OTR, Maine confirmed that no current control requirements in
the SIP will be relaxed as a result of the petition request. To date,
Maine has not submitted any SIP revisions to modify current OTR control
requirements and should the EPA grant final approval of Maine's
petition, this would not in itself have the effect of revising Maine's
existing SIP requirements. A more detailed discussion of the changes
follows.
i. NSR
The NSR provisions of the CAA are a combination of air quality
planning and air pollution control technology provisions that require
stationary sources of air pollution to obtain permits before they are
first constructed or engage in a modification of an existing facility.
Part C of title I of the CAA contains the PSD program, which reflects
the requirements for the preconstruction review and permitting of new
and modified major stationary sources of air pollution (specifically,
sources emitting specific amounts of regulated NSR pollutants) located
in areas meeting the NAAQS (``attainment'' areas) and, areas for which
there is insufficient information to classify an area as either
attainment or nonattainment (``unclassifiable'' areas). Under the PSD
program, new major stationary sources and major modifications of
existing sources must apply best available control technology (BACT)
for each regulated NSR pollutant emitted above specific thresholds and
conduct an air quality analysis to demonstrate that the proposed source
will not cause or contribute to a violation of any NAAQS or PSD
increment.\37\
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\37\ See CAA section 165(a).
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Part D of title I of the CAA contains the NNSR program, reflecting
the requirements for the preconstruction review and permitting of new
and modified major stationary sources of air pollution locating in
areas designated as not meeting the NAAQS (``nonattainment'' areas).
Under the NNSR program, new major sources and major modifications of
existing sources in a nonattainment area must apply control technology
that meets the statutory definition of Lowest Achievable Emissions Rate
(LAER) and must obtain emissions reductions from existing sources to
offset the emissions increase from the new or modified source and
ensure that the emissions increase will not interfere with a state's
reasonable further progress toward attainment of the NAAQS.\38\
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\38\ See CAA section 173(a) and (c).
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The permit program for non-major sources and minor modifications to
major and non-major sources is known as the minor NSR program. CAA
section 110(a)(2)(C) requires states to develop a permitting program to
regulate the
[[Page 23317]]
construction and modification of any stationary source ``as necessary
to assure that [NAAQS] are achieved.''
To comply with the requirements of the CAA and the NSR implementing
regulations at 40 CFR 51.160 through 51.166, most states have EPA-
approved SIPs in place to implement the PSD, NNSR, and minor NSR
preconstruction permit programs. The state of Maine implements its NSR
program requirements through 06-096 Code of Maine Regulations (CMR) in
Chapter 100 (Definitions Regulation), Chapter 113 (Growth Offset
Regulation), and Chapter 115 (Major and Minor Source Air Emission
License Regulations). The EPA first approved Maine's NSR program
regulations as part of the state's SIP on January 30, 1980 (45 FR
6784).\39\ Together, Maine's PSD, NNSR, and minor NSR permitting
programs ensure that construction of new and modified stationary
sources of air pollutant emissions do not significantly deteriorate air
quality in ``clean areas,'' impede reasonable further progress in
nonattainment areas, or interfere with maintenance of any NAAQS.
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\39\ The EPA last approved revisions to the program on August 1,
2016 (81 FR 50353).
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The applicability of the PSD, NNSR or minor NSR programs to a
stationary source must be determined in advance of construction and is
a pollutant-specific determination. Thus, a stationary source may be
subject to PSD for certain pollutants, NNSR for some pollutants and
minor NSR for others after assessing the quantity of emissions, the
regulated NSR pollutants emitted and the area's attainment status.
Pursuant to Maine's NNSR program, sources with a potential to emit
equal to or greater than 100 tons per year of NOX or 50 tons
per year of VOC qualify as major stationary sources.\40\ New major
stationary sources are subject to NNSR permitting requirements,
including LAER and emissions offsets, for any pollutant (i.e.,
NOX or VOC) which the source has the a potential to emit in
amounts equal to or greater than the respective major source threshold.
For existing major stationary sources in Maine, NNSR permitting
requirements apply to construction projects that would result in a
significant net emissions increase of NOX or VOC, defined as
an increase equal to or greater than 40 tons per year for either
NOX or VOC. Such projects qualify as a major modification at
an existing major stationary source.
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\40\ Lower applicability thresholds apply for NOX and
VOC in areas designated as Serious, Severe, and extreme
nonattainment for a particular ozone standard. However, currently,
no areas in Maine are classified as such, nor are any areas subject
to lower thresholds as a result of prior NAAQS nonattainment status.
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The CAA requires PSD programs to apply to any major emitting
facility, defined as a stationary source that emits, or has a potential
to emit, at least 100 tpy of a regulated NSR pollutant, if the source
is in one of 28 listed source categories, or, if the source is not,
then at least 250 tpy of a regulated NSR pollutant. See 42 U.S.C.
7479(1); 40 CFR 51.166(b)(1); and 40 CFR 52.21(b)(1). Maine's PSD
program is more stringent than the federal program in that it sets the
major stationary source threshold (for purposes of determining
applicability to PSD permit requirements) at 100 tpy of a regulated NSR
pollutant regardless of source category. See Chapter 100 (125)(B). New
major stationary sources are subject to PSD permitting requirements,
including BACT and air quality impacts analysis, for any regulated NSR
pollutant that the source has the potential to emit in an amount equal
to or greater than pollutant-specific significant emissions rates
contained in the regulations. For both NOX and VOC, the
significant emissions rate under PSD is 40 tons per year. Because the
OTR is treated as moderate nonattainment for ozone, the precursors
NOX and VOC are not currently subject to PSD permitting
requirements in Maine.\41\ See 40 CFR 51.166(i)(2).
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\41\ Because NOX is also a regulated NSR pollutant
corresponding to the NO2 NAAQS, under the current OTR
status in Maine, new major sources and major modifications can be
subject to both NNSR (for NOX as an ozone precursor) and
PSD (for NO2, measured as total NOx for applicability
purposes). In general, this means that in addition to LAER and
emission offsets, the source would also be required to demonstrate
that their significant emissions of NOx would not cause or
contribute to a violation of the NO2 NAAQS or PSD
increments.
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Maine's minor NSR program regulates construction activities and
resulting emissions at some new and existing sources not subject to
NNSR or PSD. The emissions threshold for minor NSR applicability is 10
pounds per hour or 100 pounds per day.\42\ The applicable control
technology standard under Maine's minor NSR program is BACT, which uses
the same definition of BACT as the state's PSD-program regulations.
Thus, in Maine, BACT must be applied by all new major stationary
sources and major modifications under the PSD program and to new non-
major sources and minor modifications at both major and non-major
sources under the state's minor NSR program. Under the definition in
both programs, BACT is an emissions limitation based on the maximum
degree of control that can be achieved for a particular pollutant
taking into account energy, environmental, and economic impacts. BACT
can be add[hyphen]on control equipment or a design, equipment, work
practice, or operational standard if imposition of an emissions
standard is infeasible.
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\42\ Maine's minor NSR program also contains applicability
thresholds for fuel burning devices, i.e., boilers and engines, and
applicability of the minor source program for these devices is
determined based on maximum heat input.
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The applicable control technology standard under Maine's NNSR
program is the Lowest Achievable Emissions Rate (LAER). With regard to
NOX and VOC, LAER is applicable to new major stationary
sources and major modifications because of the state's current
inclusion in the OTR (even though all areas in Maine are designated
attainment or unclassifiable for ozone). Maine defines LAER within
Chapter 100 as meaning the more stringent rate of emissions based on
the following:
The most stringent emission limitation which is contained in the
implementation plan of any State for that class or category of
source, unless the owner or operator of the proposed source
demonstrates that those limitations are not achievable; or
The most stringent emission limitation which is achieved in
practice by that class or category of source, whichever is more
stringent. In no event may LAER result in emission of any pollutant
in excess of those standards and limitations promulgated pursuant to
CAA section 111 or 112, or any emission standard established by the
Maine Department of Environmental Protection.\43\
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\43\ See Chapter 100 section (78), definition of LAER.
Because of Maine's location in the OTR, LAER is currently required
if emissions of NOX or VOC from a project at a major source
exceed Maine's NNSR applicability thresholds, and BACT is required if
project emissions are below those thresholds but above the state's
minor NSR thresholds. One result of granting Maine's petition to remove
some portions of the state from the OTR is that PSD will apply to major
sources and BACT will be required for NOX and VOC emissions
in all NSR permitting actions (major and minor) for sources located in
those areas removed from the OTR. However, existing LAER requirements
contained in existing permits located in areas that would no longer be
part of the OTR (i.e., in final permits issued prior to the effective
date of Maine's petition, should it be granted) would remain in effect.
In addition to LAER, another requirement that is unique to NNSR is the
requirement for new major sources and major modifications at existing
sources to secure offsetting emissions reductions. Such emissions
offsets must be obtained from ``the same source or
[[Page 23318]]
other sources in the same nonattainment area,'' except that the state
may allow emissions offsets derived from another nonattainment area if
``(A) the other area has an equal or higher nonattainment
classification than the area in which the source is located and (B)
emissions from such other area contribute to a violation of the
national ambient air quality standard in the nonattainment area in
which the source is located.'' 42 U.S.C. 7502(c). For ozone, the CAA
requires that the amount of emissions offsets obtained increase with
the severity of the area's nonattainment status. Areas within the OTR
are treated as ``moderate.'' Thus, the emissions offsets that must be
obtained in Maine is calculated by applying a ratio of 1.15 to 1 for
NOX and VOC.\44\
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\44\ Chapter 113 section (3)(E)(1)(c)(ii).
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If the EPA grants Maine's petition to remove parts of the state
from the OTR, new stationary sources locating in the affected area
would be subject to PSD for NOX and VOC if the source is
major under Maine's definition by virtue of it having a potential to
emit 100 tons per year or more of any regulated NSR pollutant and 40
tons per year or more of NOX and VOCs. If triggered, PSD
permitting requirements for NOX and/or VOC would include the
application of BACT and a demonstration that the allowable emissions
increase(s) would not cause or contribute to a violation of the ozone
NAAQS. Modifications at existing major stationary sources that result
in an increase of 40 tons per year or more of NOX or VOC by
itself and on a net basis would be subject to the same PSD permitting
requirements. New non-major sources and minor modifications at existing
sources (major and non-major) would be subject to the minor NSR
permitting requirements for NOX and/or VOC, including BACT,
if emissions exceed the applicable minor NSR thresholds discussed
previously.
Based on the foregoing, if the EPA finalizes its proposal to grant
Maine's petition, some sources and modifications located in the part of
the state no longer in the OTR would be subject to BACT instead of LAER
for NOX and VOC. While there are not always significant
differences between the level of control determined under BACT and
LAER, BACT determinations must consider factors, such as energy,
environmental, and economic impacts and other costs, that are not
considered for LAER determinations. Because of differences between BACT
and LAER, in individual determinations, it is not necessarily the case
that LAER is always more stringent than BACT.
Some sources previously required to obtain emissions offsets under
the NNSR program would not be required to do so under the PSD or minor
NSR program. While the NNSR emissions offsets requirement would no
longer apply in the portion of the state to be removed from the OTR,
under PSD, new major stationary sources and major modifications would
be required to demonstrate that proposed emissions increases will not
cause or contribute to a violation of the ozone NAAQS. For projects
subject to minor NSR, Maine's minor NSR program also requires at
Chapter 115 section (7)(C)(1) air quality impact analyses of
NOX for new minor sources and minor modifications at
existing sources if emissions exceed 50 tons per year of
NOX. Maine also has discretionary authority to require an
ambient air quality analysis for sources that emit less 50 tons per
year of NOX (see Chapter 115 subsection (7)(B)(3)).
Procedurally, granting Maine's petition would not materially alter
opportunities for public involvement, as Maine's PSD and NNSR pre-
construction regulations contain procedures for the opportunity for
public participation in the permitting process whether a stationary
source is subject to minor NSR, PSD, or NNSR permitting regulations.
ii. Maine I/M Program
Section 184(b)(1)(A) of the Act requires certain areas in the OTR
to adopt and implement an inspection and maintenance program meeting
EPA's enhanced I/M performance standard. The EPA's I/M rule was
established on November 5, 1992 (57 FR 52950). The EPA made significant
revisions to the I/M rule on September 18, 1995 (60 FR 48035) and on
July 25, 1996 (61 FR 39036). The I/M regulation was codified at 40 CFR
part 51, subpart S, and requires States subject to the I/M requirement
to submit an I/M SIP revision that includes all necessary legal
authority and the items specified in 40 CFR 51.350 through 51.373.
Maine is subject to the OTR requirements for a vehicle I/M program in
the Portland, Maine area.
Maine's I/M program provides for the implementation of I/M in
Maine's Cumberland County, which includes the Portland area, beginning
on January 1, 1999. Maine implemented an annual, test and repair I/M
program, which the state designed to meet the requirements of the EPA's
performance standard and other requirements contained in the federal I/
M rule. Testing is overseen by the Department of Public Safety (DPS)
and implemented by individual garages in the existing safety inspection
network. Aspects of the Maine I/M program include: Antitampering
testing for catalytic converters on 1983 and newer light duty vehicles
and trucks, gas cap pressure testing on 1974 and newer vehicles, and
On-Board Diagnostic (OBD2) checks (beginning in January 2000),
enforcement by the existing windshield safety inspection stickers,
requirements for testing convenience, quality assurance, data
collection, no cost waivers, reporting, test equipment and test
procedure specifications, public information and consumer protection,
inspector training and certification, penalties against inspectors
which perform faulty inspections, and emissions recall enforcement.
However, Maine did not meet the enhanced I/M requirements due to the
lack of a required registration-based enforcement program. The EPA
determined that even though Maine's I/M program did not meet the
requirements for the EPA's enhanced I/M program, the program
contributes to air quality improvement. The EPA also determined that an
enhanced I/M program in Maine would not significantly contribute to the
attainment of the 1-hour ozone standard anywhere in the OTR. (66 FR
1871, January 10, 2001). If the EPA grants Maine's 176A petition, the
impacts on Maine's I/M program would likely be minimal. Cumberland
County is the only county in Maine with an I/M program, and, as noted
previously, only six towns in Cumberland County are included in the
portion of the state requesting to opt out of the OTR, and those six
towns contain only five percent of the county's population. Even if the
state were to request to remove I/M requirements for those six towns in
the future, subject to CAA section 110(l), the majority of Cumberland
County would remain in the OTR and will continue to implement Maine's
existing I/M program.
iii. Stage II Refueling Vapor Recovery
Stage II refueling vapor recovery systems and vehicle onboard
refueling vapor recovery (ORVR) systems were initially both required by
the 1990 Amendments to the CAA. Section 182(b)(3) requires ozone
nonattainment areas classified Moderate and above to implement Stage II
refueling vapor recovery programs. Under CAA section 184(b)(2), states
in the OTR were also required to implement Stage II or comparable
measures. CAA section 202(a)(6) required EPA to promulgate
[[Page 23319]]
regulations for ORVR for light duty vehicles (passenger cars).\45\
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\45\ The EPA adopted these requirements in 1994. ORVR equipment
has been phased in for new passenger vehicles beginning with model
year 1998 and starting with model year 2001 for light-duty trucks
and most heavy-duty gasoline powered vehicles. ORVR equipment has
been installed on nearly all new gasoline- powered light-duty
vehicles, light-duty trucks, and heavy-duty vehicles since 2006.
During the phase-in of ORVR controls, Stage II provided volatile
organic compound (VOC) reductions in ozone nonattainment areas and
certain attainment areas of the OTR. Congress recognized that ORVR
systems and Stage II vapor recovery systems would eventually become
largely redundant technologies and provided authority to the EPA to
allow states to remove Stage II vapor recovery programs from their
SIPs after the EPA finds that ORVR is in ``widespread use.''
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Maine's SIP approved Stage II program requirements were codified in
Maine's Chapter 118, Gasoline Dispensing Facilities Vapor Control.\46\
Maine's rule required gasoline dispensing facilities located in the
counties of York, Cumberland, and Sagadahoc to install Stage II vapor
recovery systems. With the widespread use of ORVR, Maine's revised
Chapter 118 decommissioning Stage II vapor recovery requirements was
approved into the SIP. (82 FR 32480, July 14, 2017). EPA's proposed
grant of Maine's 176A petition would have no impact on Stage II
requirements due to the decommissioning of the program in Maine.
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\46\ 61 FR 53636 October 15, 1996
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iv. RACT
Sections 182(b)(2) and 184(b)(1)(B) of the CAA require states with
ozone nonattainment areas that are classified as Moderate or above, as
well as areas in the OTR, to submit a SIP revision requiring the
implementation of RACT for sources covered by a control techniques
guideline (CTG) and for all major sources of VOCs and NOX. A
CTG is a document issued by the EPA which establishes a ``presumptive
norm'' for RACT for a specific VOC source category. RACT is defined as
the lowest emissions limitation that a particular source is capable of
meeting by the application of control technology that is reasonably
available considering technological and economic feasibility. The CTGs
usually identify a particular control level, which the EPA recommends
as being RACT. States in the OTR are required to address RACT for the
source categories covered by CTGs through adoption of rules as part of
the SIP, and they are also required to adopt RACT for major sources of
VOCs (50 tpy) and major sources of NOX (100 tpy) even if a
CTG does not apply.
The EPA has approved: The Maine VOC RACT for the 1-hour ozone
standard (65 FR 20753, April 18, 2000) and (67 FR 35441, May 20, 2002);
the Maine NOX RACT for the 1-hour ozone standard (60 FR
66755, December 26, 1995, and 67 FR 57154, September 9, 2002); the
Maine VOC and NOX RACT for the 1997 8-hour ozone standard
(77 FR 30216, May 22, 2012); and the Maine VOC RACT for the 2008 8-hour
ozone standard (84 FR 38558, August 7, 2019). We note that Maine's
petition includes a commitment to implement existing RACT and to adopt
future RACT requirements statewide, for both the 2015 ozone NAAQS and
any future ozone NAAQS. The state's deadline to submit a RACT SIP for
the 2015 ozone standard was August 3, 2020 (83 FR 62998, 63001,
December 6, 2018).
Notwithstanding the stated intention in Maine's petition to adopt
statewide RACT for the 2015 ozone standard and to adopt statewide RACT
for future ozone NAAQS, in this case the EPA does not believe it is
necessary for the state to adopt such additional RACT to meet the test
set forth in CAA section 176A(a)(2). The state's technical
demonstration submitted with its petition, which shows that Maine does
not and will not contribute to nonattainment or interfere with
maintenance anywhere in the OTR, does not reflect the adoption of
statewide RACT to address the 2015 ozone NAAQS (or additional RACT
controls for future standards). As stated in CAA section 176A(a)(2),
and discussed in Section III.C of this notice, the Administrator may
exercise the OTR removal provision ``whenever the Administrator has
reason to believe'' that additional OTR controls will not contribute
significantly to attainment in the OTR. The EPA interprets this
language to permit the Administrator to consider whether to approve a
state's petition even if the state has not met, and the EPA has not
fully approved, all applicable OTR requirements to date.
If finalized, the EPA's grant of Maine's petition would terminate
Maine's federal obligation under CAA section 184 to adopt further RACT
requirements for the portion of the state no longer in the OTR,
including for the 2015 ozone NAAQS. The portion of the state remaining
in the OTR, however, remains obligated under CAA section 184 to submit
a SIP revision to address both NOX and VOC RACT for the 2015
ozone NAAQS, and for any future ozone NAAQS so long as the area remains
in the OTR. Of course, the state could still elect to adopt SIP-
strengthening control measures (either at the state level or as SIP-
strengthening measures) for sources in the portion of the state that is
no longer in the OTR, even if that portion of the state is not
obligated to meet RACT under section 184(b). In addition, if the EPA's
grant is finalized, the state could seek to relax or remove RACT
requirements in its SIP for the portion of the state no longer in the
OTR, but as noted in section III.C, any such revision would be required
to satisfy a demonstration of noninterference under section 110(l).
V. The EPA's Technical Assessment of the Maine CAA Section 176A
Petition
A. Description of the Technical Analysis Included in the Maine CAA
Section 176A Petition
As noted previously, the Maine petition included detailed technical
analyses for VOC and NOX emissions in the state, including
an analysis of whether emissions from Maine impact other areas in the
OTR. The state uses the following techniques to analyze those emissions
and their impacts: Back trajectories using the National Oceanic and
Atmospheric Administration (NOAA) Air Resources Laboratory's Hybrid
Single Particle Lagrangian Integrated Trajectory (HYSPLIT) model \47\
and photochemical source apportionment modeling. These analyses are in
keeping with steps 1 and 2 of the interstate transport framework
described in Section III.C of this document. In both the trajectory and
modeling analyses, air quality monitors that either measured elevated
ozone concentrations or were projected to have design values that
violated the NAAQS or struggled to maintain the NAAQS were identified
(step 1). Maine then used HYSPLIT trajectory model and photochemical
source apportionment modeling to identify whether Maine contributed to
those problem monitors (step 2). Further inspection of Maine's
emissions trends supports the conclusions made using the HYSPLIT and
source apportionment modeling analyses.
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\47\ 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.)
---------------------------------------------------------------------------
The air trajectories used by Maine DEP are four-dimensional
representations of the path an air parcel follows, in time, based on
surface and upper-level meteorological data during the day of and days
prior to the measured exceedances. A back trajectory, as used by Maine
DEP in this case, represents the path an air parcel takes to reach a
specific point in time and space. Using the HYSPLIT back trajectory
model, Maine DEP air quality meteorologists analyzed back
[[Page 23320]]
trajectories for 989 days from the 2016 through 2018 ozone seasons at
monitoring locations in the OTR with current 8-hour ozone design values
exceeding the 2015 ozone NAAQS of 70 ppb. For each such exceedance day
at each monitoring site, 48-hour back trajectories originating from 10
and 500 meters above ground level were created for the hour of the
maximum hourly ozone. As noted above in Section IV.A of this document,
for this analysis, the ``NAM 12 km pressure'' gridded meteorological
data was used, except for August 27, 2016, when no meteorological data
was available so the ``NAM 12 km hybrid'' meteorology was used for that
day. The trajectories were then plotted to determine the origin of the
air on high-ozone days. The Maine petition included maps showing that
none of the 989 10m back trajectories traveled over the state of Maine
(Figure 7 of Maine petition) and that 2 out of the 989 back
trajectories at 500 meters traversed the far western edge of Maine
(Figure 9 of Maine petition). Maine asserted that the fact that air
parcels at violating monitors on days greater than 70 ppb did not
originate from or traverse the state of Maine in the preceding 48 hours
provided support for the conclusion that Maine did not contribute
significantly to ozone nonattainment at those violating monitors.
In addition, Maine provided similar HYSPLIT back trajectory
analyses for Maine monitors (none of which recorded design values above
the NAAQS) on days when maximum daily 8-hour average ozone
concentrations exceeded 70 ppb. These back trajectories showed that
most of the air parcels traveling to the Maine monitors on those high-
ozone days were transported from the south and southwest direction
along the coast of Maine and primarily traversed either offshore
locations or portions of the state that will remain in the OTR.
In addition to the trajectory analysis discussed above, Maine's
petition referenced the EPA's photochemical modeling for the CSAPR
Update for the 2008 ozone NAAQS and results from the interstate
transport modeling for the 2015 ozone NAAQS.48 49 The EPA's
CSAPR Update modeling projected ozone design values in 2017 and modeled
each state's total contribution to that value for the 2008 8-hr ozone
NAAQS of 75 ppb. The same was done for the 2015 8-hour ozone NAAQS of
70 ppb interstate transport assessment for the year 2023. The maximum
contribution from the entire state of Maine to any monitoring site in
any other state in the OTR is 0.47 ppb in New Hampshire, based on the
EPA's contribution modeling for 2017, and 0.13 ppb in Massachusetts
based on the EPA's contribution modeling for 2023. The modeling further
estimated that the maximum total contribution of the state of Maine to
any monitors projected to have nonattainment or maintenance problems
within the OTR was 0.01 ppb for both 2017 and 2023.
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\48\ See Air Quality Modeling Technical Support Document for the
Final CSAPR Update, available in the docket for this action or at
https://www.epa.gov/airmarkets/air-quality-modeling-technical-support-document-final-cross-state-air-pollution-rule.
\49\ See Information on the Interstate Transport State
Implementation Plan Submissions for the 2015 Ozone National Ambient
Air Quality Standards under Clean Air Act Section
110(a)(2)(D)(i)(I), March 27, 2018, available in the docket for this
action or at https://www.epa.gov/interstate-air-pollution-transport/interstate-air-pollution-transport-memos-and-notices.
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Finally, Maine provided graphical figures showing NOX
and VOC historical emissions trends as well as projected emissions
trends out to 2028. These data include statewide emissions inventories
as well as a break-out of emissions for the Portland and Midcoast Ozone
areas. Furthermore, the petition provides emissions data broken out
into four source types (on-road vehicles, non-road equipment, point
sources and nonpoint sources), and shows that emissions of on-road
vehicles, which were the largest source of anthropogenic NOX
emissions in the state of Maine between 2005 and 2014, are expected to
continue to decline. Maine's emissions analysis also shows that
nonpoint and non-road sectors were the largest sources of VOC emissions
in the state of Maine in 2005 and 2014.
B. The EPA's Technical Assessment of the Maine Section 176A Petition
As noted in Section III.C of this document, the EPA views the
inquiry under CAA section 176A(a)(2) as necessitating the
identification of current and future air quality problems in the OTR,
determining whether the petitioning area is significantly contributing
to those problems, and examining whether removal of the petitioning
area from the OTR will significantly contribute to nonattainment or
maintenance problems in the future. The EPA proposes to find that the
technical analyses submitted by Maine in its CAA section 176A petition,
in conjunction with additional analysis performed by the EPA, support
Maine's petition to remove a portion of the state from the OTR.
The HYSPLIT analyses performed by Maine and summarized in Section
V.A. are a technically sound and appropriate method to support showing
the potential (or lack of potential) of an area to contribute to high-
ozone values at a downwind location. This type of trajectory analysis
is a commonly used method to examine potential source-receptor
relationships based on air transport patterns. In this case, we agree
that the analysis provided by Maine showed that in 2016-2018 air
parcels containing high-ozone concentrations at violating monitors in
the OTR rarely if ever originated from Maine.
The EPA's ozone source apportionment air quality modeling conducted
for the CSAPR Update, and the EPA's interstate transport modeling for
the 2015 ozone NAAQS both further support the conclusions that (1)
Maine has historically contributed below the one percent threshold of
0.70 ppb to all other states and contributes well below that threshold
to any receptors currently \50\ identified as having a potential
nonattainment or maintenance problem, and that (2) the state will
continue to contribute below that threshold to all other states in the
OTR in the future. Further, EPA's analysis demonstrates that there are
no ozone nonattainment or maintenance receptors in Maine, either now,
or going forward, even if the petition is granted. The EPA's source
apportionment modeling employs enhanced techniques that track the
formation and transport of ozone from specific emissions sources and
calculates the contribution of sources and precursors to ozone for
individual receptor locations. The strength of the photochemical model
source apportionment technique is that all modeled ozone at a given
receptor location in the modeling domain is tracked back to specific
sources of emissions and boundary conditions to fully characterize
culpable sources.
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\50\ Based on official 2019 ozone design values (https://www.epa.gov/air-trends/air-quality-design-values).
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Data from the contribution analysis are summarized within Table 2
of the state's submittal, showing the maximum modeled ozone
contribution from Maine's emissions in other OTR states. The data
indicate a maximum modeled impact of only 0.47 ppb in 2017 in New
Hampshire, which is well below the one percent threshold of 0.70 ppb
used to establish significant contribution linkages, and, additionally,
occurs in a state, New Hampshire, that is attaining and projected to
continue to attain both the 2008 and 2015 ozone NAAQS. The EPA also
examined its 2023 contribution modeling to identify the highest
contribution from Maine to any
[[Page 23321]]
projected nonattainment or maintenance receptor in another state. The
data show that the highest contribution from Maine to a nonattainment
or maintenance receptor in another state based on modeling is 0.01 ppb
in 2017 at the receptor in Greenwich, Fairfield County, CT and 0.01 ppb
in 2023 at the receptor in Babylon, Suffolk County, NY (site
361030002). This amount (i.e., 0.01 ppb) is well below a 0.70 ppb
(i.e., one percent of the 2015 NAAQS) contribution threshold.
Second, Maine's HYSPLIT back trajectory analyses included an
evaluation of Maine monitors that indicates that high-ozone
concentrations in the state are largely due to out-of-state
contributions. Maine's petition provides back trajectory air parcel
paths from monitors in the state on days when those monitors recorded
maximum daily 8-hour average ozone concentrations that exceeded the
2015 NAAQS. The air parcels traveling to these Maine monitors on those
high-ozone days did not typically traverse the portions of Maine
proposed to be removed from the OTR. Rather, the air parcels were
carried by winds from the south and southwest and, on most days
traversed either marine locations or the portion of the state that will
remain in the OTR (i.e., the Portland and Midcoast areas).
We also propose to find that the NOX and VOC historical
emissions trends and projected future emissions trends information to
2023 and 2028 provided in Maine's submittal further support removal of
the petitioning area from the OTR. VOC and NOX emissions in
Maine have declined since 2005 and are expected to continue to decline
into the future. The historical and projected downward trend is driven,
in large part, by emissions reductions from the point source and on-
road mobile source categories.
Maine's documentation shows that statewide point source emissions
of NOX and VOC decreased 51 and 45 percent, respectively
from 2005 to 2016. Maine's projections predict that NOX and
VOC emissions will continue to decrease into the future. For example,
Maine's analysis of statewide emissions shows NOX and VOC
reductions of 46 and 34 percent respectively between 2011 and 2023.
These reductions are primarily coming from on-road vehicles, EGU point
sources, and non-road equipment. The reduction in emissions from on-
road vehicles is largely the result of several mobile source programs
such as the Tier 3 emissions and gasoline standards for light-duty
vehicles, the mobile source air toxics rule and the heavy-duty highway
vehicle rule \51\ which have resulted in newer vehicles having lower
emissions than vehicles previously sold in the U.S. As more of those
newer, lower-emitting vehicles replace older, higher-emitting vehicles,
mobile source emissions are expected to further decline. It should be
noted that none of these regulations were affected by the recent
finalization of ``The Safer Affordable Fuel-Efficient (SAFE) Vehicles
Rule Part One: One National Program'' \52\ or ``The Safer Affordable
Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger
Cars and Light Trucks,'' \53\ which addressed greenhouse gas emissions
standards, corporate average fuel economy standards and the ability of
states to adopt greenhouse gas standards and related regulations for
light-duty vehicles.
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\51\ E.g., Control of Air Pollution From Motor Vehicles: Tier 3
Motor Vehicle Emission and Fuel Standards, 79 FR 23414 (April 28,
2014); Control of Hazardous Air Pollutants From Mobile Sources, 72
FR 8428 (February 26, 2007); and Control of Air Pollution from New
Motor Vehicles: Heavy-Duty Engine and Vehicle Standards and Highway
Diesel Fuel Sulfur Control Requirements, 66 FR 5002 (January 18,
2001).
\52\ 84 FR 51310 (September 27, 2019).
\53\ 85 FR 24174 (April 30, 2020).
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We note that the source apportionment air quality modeling cited by
Maine has been at issue in various legal challenges to EPA actions. See
Wisconsin v. EPA, 938 F.3d 303 (D.C. Cir. 2019); Maryland v. EPA, 958
F.3d 1185 (D.C. Cir. 2020). In both of those cases, the D.C. Circuit
remanded the EPA's final actions to the extent that those actions
failed to require upwind states to eliminate their significant
contributions in accordance with the attainment dates found in CAA
section 181 by which downwind states must come into compliance with the
relevant NAAQS. Wisconsin, 938 F.3d at 313; Maryland, at 958 F.3d at
1203-04. The two statutory provisions at issue in Wisconsin and
Maryland--i.e., CAA section 110(a)(2)(D)(i)(I) (the good neighbor
provision), and CAA section 126, which by its terms incorporates the
substantive requirements of the good neighbor provision--require that
the states and the EPA consider statutory downwind attainment dates in
determining the deadline by which upwind significant contribution must
be eliminated. See CAA section 110(a)(2)(D)(i)(I) (State plans must
``contain adequate provisions prohibiting, consistent with the
provisions of this subchapter,'' emissions which will contribute
significantly to nonattainment in, or interfere with maintenance by,
any other state with respect to any such NAAQS) (emphasis added). By
contrast, CAA section 176A has no reference to other provisions of the
CAA, the attainment dates in title I, or a defined timeframe for
analysis. See CAA section 176A(a)(1) and (2) (the Administrator may add
any state whenever he has reason to believe that the interstate
transport of air pollutants . . . ``significantly contributes to a
violation of the standard in the transport region''; and the
Administrator may remove any state from the region whenever he has
reason to believe that the OTR control of emissions in the state will
not ``significantly contribute to the attainment of the standard in any
area in the region'') (emphasis added). In addition, while the selected
analytic year for the EPA's air quality modeling can in some instances
have a material impact on determining whether receptors are in
attainment and/or whether areas are linked to those receptors, this is
not the case for Maine. Maine has not been linked as contributing above
the one percent of the NAAQS threshold to downwind nonattainment or
maintenance based on air quality contribution modeling performed by the
EPA for either the 2008 or 2015 ozone NAAQS. We, therefore, do not
think that the legal issues identified with the EPA's air quality
modeling in Wisconsin and Maryland, which were solely concerned with
the relationship of that modeling to the statutory attainment dates,
undermines Maine's use of that modeling in its petition. Moreover, we
note that the D.C. Circuit upheld the EPA's air quality modeling with
respect to the many technical challenges raised by petitioners in the
Wisconsin case. 938 F.3d at 323-331.
The EPA, therefore, proposes to find that granting Maine's petition
to remove portions of the state from the OTR, and the resulting changes
in the extent of emissions controls that would result (discussed in
detail in section IV), will not significantly contribute to
nonattainment or maintenance problems for any area in the OTR. As
noted, the emissions trends in Maine indicate continued declines in
emissions of ozone precursors associated with on-the-books emissions
controls, and do not depend on any new emissions limitations that would
be driven by OTR control requirements under CAA section 184(b). In
addition, Maine's highest modeled contribution to any receptor in the
OTR that is expected to struggle with attainment or maintenance of the
2015 ozone NAAQS is only 0.01 ppb. This suggests that the ozone
contribution from anthropogenic ozone precursor emissions in Maine
would
[[Page 23322]]
have to increase by a factor of 70 for Maine to potentially contribute
above the one percent threshold to an existing or projected
nonattainment or maintenance problem in the OTR. This observation is
made merely to provide an indication of the general magnitude of
emissions increases from Maine that would be needed in order for
existing trends in improving air quality to be halted and reversed to
the extent that such an increase may create new air quality problems
closer to, or within, Maine. The EPA believes that granting the
petition would not result in such a change in emissions resulting from
either removal of existing emissions controls or unchecked growth in
new source emissions. The historic emissions trends in Maine, the CAA's
section 110(l) anti-backsliding provisions for SIP revisions and the
new source PSD permitting provisions that would apply in the removed
portion of the state provide assurances that a substantial increase in
emissions is highly unlikely, and would represent an unprecedented
reversal in overall emissions reductions for any state, whether in the
OTR or not.
Further, as discussed in Section IV of this document, the primary
change in the ozone control regime that will result from granting the
petition is to switch from NNSR requirements for new sources of
emissions to PSD NSR requirements, in the areas of the state to be
removed. This change would mean the application of BACT rather than
LAER controls for new sources and removal of the requirement to obtain
emissions offsets. This change would be primarily impactful for VOCs
rather than NOX emissions. This is because Maine has, in the
past, obtained NOX waivers under CAA section 182(f), which
suspended NNSR requirements (and RACT requirements) for major
NOX emissions sources. During the periods when Maine was
under NOX waivers, its NOX emissions and ozone
levels generally continued to decline. Thus, while Maine has not
obtained a NOX waiver for the 2015 ozone NAAQS, this does
not affect the EPA's overall assessment that the switch to PSD NSR from
NNSR would not be expected to result in a substantial change from
historical levels of NOX emissions. With respect to VOC
emissions, any new source growth under PSD NSR rather than NNSR cannot
be reasonably anticipated to cause such a dramatic increase in
emissions as to result in new air quality problems where none currently
exist--where such improvements in Maine's air quality have primarily
been driven by reductions in out-of-state emissions and non-OTR related
control strategies such as federal mobile source standards.
Additionally, Maine's petition shows that a substantial portion of
Maine's anthropogenic VOC and NOX emissions occur in the
Portland and Midcoast ozone areas, which Maine is not proposing to
remove from the OTR.\54\ The fact that the petition shows contributions
from the entire state to be insignificant, while a substantial portion
of those emissions originate from areas that will remain in the OTR
makes an even stronger case that there is reason to believe that
granting Maine's petition will not result in significant contributions
to ozone violations anywhere in the OTR.
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\54\ While Maine's petition does not provide precise emissions
for the Portland and Midcoast ozone areas, comparing Figures 14 and
15 in the petition with the state's overall emissions in Figures 12
and 13 shows that in 2005, NOX emissions in the Portland
and Midcoast areas accounted for over half of the state's overall
NOX emissions and VOC emissions from those areas
comprised about half of the state's overall VOC emissions.
Similarly, in 2014, NOX emissions from the Portland and
Midcoast ozone areas accounted for about half of the state's overall
NOX emissions, and the areas' VOC emissions accounted for
a little under half of the state's overall VOC emissions. We note
that the figures in the petition provide Maine's total emissions in
tons/day while the figures regarding the Portland and Midcoast areas
provide emissions in summer tons/day, but the EPA believes the
overall state emissions are likely summer tons/day because such
reporting would be in line with the EPA's longstanding guidance to
states on how to prepare emission inventories for ozone NAAQS.
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VI. The EPA's Proposed Action on the Maine CAA Section 176A Petition
Based on the information discussed in this notice, the EPA is
proposing to grant Maine's CAA section 176A petition. In consideration
of monitoring data, emissions data, technical demonstrations (including
air quality monitoring and trajectory analyses), and the potential
impact to air quality control regimes, the EPA proposes to find that
additional OTR controls under CAA section 184(b) for the portion of the
state that Maine is seeking to remove from the OTR will not
significantly contribute to attainment of any ozone NAAQS in any area
of the OTR. In support of this proposed conclusion, the EPA finds that
removing the requested areas from the OTR will not result in emissions
changes that would significantly contribute to nonattainment or
interfere with maintenance of any ozone NAAQS in any area of the OTR.
All areas of the state proposed for removal from the OTR have been
designated in attainment of the ozone NAAQS since 2004, and the entire
state of Maine has been designated as in attainment with the ozone
NAAQS since 2007. Technical demonstrations from Maine's HYSPLIT back
trajectory analysis, the EPA's ozone source apportionment modeling, and
emissions trends all support the assertion that emissions from the
areas requested to be removed from the OTR will not significantly
contribute to nonattainment or maintenance problems in any area in the
OTR, either within or outside the state of Maine, in the foreseeable
future. Furthermore, removing those areas from the OTR will not result
in unchecked relaxation of existing NOX and VOC controls
included in Maine's SIP or revoke permitted emissions limits at
existing facilities. Any future revisions to Maine's SIP would be
subject to CAA section 110(l) anti-backsliding demonstrations.
Accordingly, the EPA proposes to grant the CAA section 176A petition
filed by the state of Maine.
VII. Judicial Review and Determinations Under Sections 307(b)(1) and
307(d) of the CAA
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action, if finalized, must be filed in the
United States Court of Appeals for the appropriate circuit within 60
days of publication of any final action. Filing a petition for
reconsideration by the Administrator of this rule, if finalized, will
not affect the finality of the rule for the purposes of judicial review
nor will it extend the time within which a petition for judicial review
may be filed, and shall not postpone the effectiveness of such rule or
action. The Administrator of the EPA hereby determines that this action
is subject to CAA section 307(d), as authorized by section
307(d)(1)(V).
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, Particulate
matter.
Statutory Authority: 42 U.S.C. 7401 et seq.
Michael S. Regan,
Administrator.
For the reasons stated in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:
PART 81--DESIGNATIONS OF AREAS FOR AIR QUALITY PLANNING PURPOSES
0
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401, et. seq.
0
2. Part 81 is amended by adding new Subpart E to read as follows:
[[Page 23323]]
Subpart E--Identification of Interstate Transport Regions
Sec.
81.455 Scope.
81.457 Ozone Transport Region.
Sec. 81.455 Scope.
This subpart identifies interstate transport regions established
for national ambient air quality standards pursuant to section 184 or
section 176A of the Clean Air Act.
Sec. 81.457 Ozone Transport Region.
Except as provided in paragraph (a), the Ozone Transport Region is
comprised of the areas identified by Congress under 42 U.S.C. 7511c(a).
The EPA Administrator removed a portion of Maine from the Ozone
Transport Region, by rule, in response to a petition submitted by Maine
under section 176A(a).
(a) Ozone Transport Region Boundary
As of [30 DAYS AFTER PUBLICATION OF FINAL ACTION IN FEDERAL
REGISTER], the boundary for the Ozone Transport Region consists of the
entire states of Connecticut, Delaware, Maryland, Massachusetts, New
Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, and
Vermont; [PORTIONS OF MAINE INCLUDED IN OTR AS IDENTIFIED AT [CITATION
xxx]]; and the Consolidated Metropolitan Statistical Area
[DOCUMENTATION DATE] that includes the District of Columbia and the
following counties and cities in Virginia: Arlington County, Fairfax
County, Loudoun County, Prince William County, Strafford County,
Alexandria City, Fairfax City, Falls Church City, Manassas City, and
Manassas Park City.
(b) Applicability
As of [30 DAYS AFTER PUBLICATION OF FINAL ACTION IN FEDERAL
REGISTER], the provisions of 42 U.S.C. 7511c will no longer be
applicable in the following areas of Maine: [PORTIONS OF MAINE TO BE
REMOVED FROM OTR AS IDENTIFIED AT [CITATION xxx]].
[FR Doc. 2021-08825 Filed 4-30-21; 8:45 am]
BILLING CODE 6560-50-P