[Federal Register Volume 87, Number 40 (Tuesday, March 1, 2022)]
[Proposed Rules]
[Pages 11373-11379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04118]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R01-OAR-2021-0672; FRL-9558-01-R1]
Air Plan Approval; New Hampshire; Boston-Manchester-Portsmouth
Area Second 10-Year Limited Maintenance Plan for 1997 Ozone NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Pursuant to the Clean Air Act (CAA), the Environmental
Protection Agency (EPA) is proposing to approve a state implementation
plan (SIP) revision submitted by the State of New Hampshire. On July
29, 2021, the State submitted its 1997 ozone national ambient air
quality standards (NAAQS) Limited Maintenance Plan (LMP) for the
Boston-Manchester-Portsmouth (Portsmouth) area. EPA is proposing to
approve the Portsmouth area LMP because it provides for the maintenance
of the 1997 ozone NAAQS through the end of the second 10-year portion
of the
[[Page 11374]]
maintenance period. The effect of this action will be to make certain
commitments related to maintenance of the 1997 ozone NAAQS in the
Portsmouth maintenance area part of the New Hampshire SIP and therefore
federally enforceable.
DATES: Written comments must be received on or before March 31, 2022.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR at https://www.regulations.gov, or via email to
[email protected]. For comments submitted at Regulations.gov,
follow the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, 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, please contact the person
identified in the FOR FURTHER INFORMATION CONTACT section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit https://www.epa.gov/dockets/commenting-epa-dockets. Publicly
available docket materials are available at https://www.regulations.gov
or at the U.S. Environmental Protection Agency, EPA Region 1 Regional
Office, Air and Radiation Division, 5 Post Office Square--Suite 100,
Boston, MA. EPA requests that if at all possible, you contact the
contact listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional Office's official hours of
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding
legal holidays and facility closures due to COVID-19.
FOR FURTHER INFORMATION CONTACT: Eric Rackauskas, Air Quality Branch,
U.S. Environmental Protection Agency, EPA Region 1, 5 Post Office
Square--Suite 100, (Mail code 05-2), Boston, MA 02109--3912, tel. (617)
918-1628, email [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. Summary of EPA's Action
II. Background
III. New Hampshire's SIP Submittal
IV. EPA's Evaluation of New Hampshire's SIP Submittal
A. Procedural Requirements
B. Substantive Requirements
1. Attainment Emissions Inventory
2. Maintenance Demonstration
a. Evaluation of ozone air quality levels.
b. Stability of ozone levels.
3. Monitoring Network and Verification of Continued Attainment
4. Contingency Plan
V. Transportation Conformity
VI. Proposed Action and Public Comment
VII. Statutory and Executive Order Reviews
I. Summary of EPA's Action
Under the CAA, EPA is proposing to approve a Limited Maintenance
Plan (LMP) for the Boston-Manchester-Portsmouth (Portsmouth)
maintenance area for the 1997 ozone NAAQS, submitted as a revision to
the New Hampshire State Implementation Plan (SIP) on July 29, 2021. The
Portsmouth area 8-hour ozone nonattainment area includes 52 cities and
towns with a combined population of 729,071 in Hillsborough, Merrimack,
Rockingham and Strafford counties, in the southeastern-most portion of
the state. On June 15, 2004, the Portsmouth area was designated as
nonattainment for the 1997 ozone NAAQS. On March 4, 2013, the area was
redesignated to attainment with that standard.
The Portsmouth area's LMP for the 1997 ozone NAAQS submitted by the
New Hampshire Department of Environmental Services (DES) is designed to
maintain the 1997 ozone NAAQS within these areas through the end of the
second ten-year period of the maintenance period. We are proposing to
approve the plan because it meets all applicable requirements under CAA
sections 110 and 175A.
II. Background
Ground-level ozone is formed when oxides of nitrogen
(NOX) and volatile organic compounds (VOC) react in the
presence of sunlight. These two pollutants, referred to as ozone
precursors, are emitted by many types of pollution sources, including
on- and off-road motor vehicles and engines, power plants and
industrial facilities, and smaller area sources such as lawn and garden
equipment and paints. Scientific evidence indicates that adverse public
health effects occur following exposure to ozone, particularly in
children and adults with lung disease. Breathing air containing ozone
can reduce lung function and inflame airways, which can increase
respiratory symptoms and aggravate asthma or other lung diseases.
Ozone exposure also has been associated with increased
susceptibility to respiratory infections, medication use, doctor and
emergency department visits and hospital admissions for individuals
with lung disease. Ozone exposure also increases the risk of premature
death from heart or lung disease. Children are at increased risk from
exposure to ozone because their lungs are still developing and they are
more likely to be active outdoors, which increases their exposure.\1\
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\1\ See ``Fact Sheet, Proposal to Revise the National Ambient
Air Quality Standards for Ozone,'' January 6, 2010 and 75 FR 2938
(January 19, 2010).
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In 1979, under section 109 of the CAA, EPA established primary and
secondary NAAQS for ozone at 0.12 parts per million (ppm), averaged
over a 1-hour period. 44 FR 8202 (February 8, 1979). On July 18, 1997,
EPA revised the primary and secondary NAAQS for ozone to set the
acceptable level of ozone in the ambient air at 0.08 ppm, averaged over
an 8-hour period. 62 FR 38856 (July 18, 1997).\2\ The EPA set the 8-
hour ozone NAAQS based on scientific evidence demonstrating that ozone
causes adverse health effects at lower concentrations and over longer
periods of time than was understood when the pre-existing 1-hour ozone
NAAQS was set. EPA determined that the 8-hour standard would be more
protective of human health, especially for children and adults who are
active outdoors, and individuals with a preexisting respiratory
disease, such as asthma.
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\2\ In March 2008, EPA completed another review of the primary
and secondary ozone standards and tightened them further by lowering
the level for both to 0.075 ppm. 73 FR 16436 (March 27, 2008).
Additionally, in October 2015, EPA completed a review of the primary
and secondary ozone standards and tightened them by lowering the
level for both to 0.70 ppm. 80 FR 65292 (October 26, 2015).
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Following promulgation of a new or revised NAAQS, EPA is required
by the CAA to designate areas throughout the nation as attaining or not
attaining the NAAQS. On April 15, 2004, EPA designated the Southeast
New Hampshire area as nonattainment for the 1997 ozone NAAQS, and the
designations became effective on June 15, 2004. Under the CAA, states
are also required to adopt and submit SIPs to implement, maintain, and
enforce the NAAQS in designated nonattainment areas and throughout the
state.
When a nonattainment area has three years of complete, certified
air quality data that has been determined to attain the 1997 ozone
NAAQS, and the area
[[Page 11375]]
has met other required criteria described in section 107(d)(3)(E) of
the CAA, the state can submit to the EPA a request to be redesignated
to attainment, referred to as a ``maintenance area''.\3\ One of the
criteria for redesignation is to have an approved maintenance plan
under CAA section 175A. The maintenance plan must demonstrate that the
area will continue to maintain the standard for the period extending 10
years after redesignation and must contain such additional measures as
necessary to ensure maintenance and such contingency provisions as
necessary to assure that violations of the standard will be promptly
corrected. At the end of the eighth year after the effective date of
the redesignation, the state must also submit a second maintenance plan
to ensure ongoing maintenance of the standard for an additional ten
years. CAA section 175A.
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\3\ Section 107(d)(3)(E) of the CAA sets out the requirements
for redesignation. They include attainment of the NAAQS, full
approval under section 110(k) of the applicable SIP, determination
that improvement in air quality is a result of permanent and
enforceable reductions in emissions, demonstration that the state
has met all section 110 and part D requirements, and a fully
approved maintenance plan under CAA section 175A.
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EPA has published long-standing guidance for states on developing
maintenance plans.\4\ The Calcagni memo provides that states may
generally demonstrate maintenance by either performing air quality
modeling to show that the future mix of sources and emission rates will
not cause a violation of the NAAQS or by showing that future emissions
of a pollutant and its precursors will not exceed the level of
emissions during a year when the area was attaining the NAAQS (i.e.,
attainment year inventory). EPA clarified in three subsequent guidance
memoranda that certain nonattainment areas could meet the CAA section
175A requirement to provide for maintenance by demonstrating that the
area's design value \5\ was well below the NAAQS and that the
historical stability of the area's air quality levels showed that the
area was unlikely to violate the NAAQS in the future.\6\ EPA refers to
this streamlined demonstration of maintenance as a Limited Maintenance
Plan (LMP). EPA has interpreted CAA section 175A as permitting this
option because section 175A of the Act defines few specific content
requirements for maintenance plans, and in EPA's experience
implementing the various NAAQS, areas that qualify for an LMP, that
have an approved LMP, have rarely, if ever, experienced subsequent
violations of the NAAQS. As noted in the LMP guidance memoranda, states
seeking an LMP must still submit the other maintenance plan elements
outlined in the Calcagni memo, including: An attainment emissions
inventory, provisions for the continued operation of the ambient air
quality monitoring network, verification of continued attainment, and a
contingency plan in the event of a future violation of the NAAQS.
Moreover, states seeking an LMP must still submit their section 175A
maintenance plan as a revision to their state implementation plan, with
all attendant notice and comment procedures.
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\4\ Calcagni, John, Director, Air Quality Management Division,
EPA Office of Air Quality Planning and Standards, ``Procedures for
Processing Requests to Redesignate Areas to Attainment,'' September
4, 1992 (Calcagni memo).
\5\ The ozone design value for a monitoring site is the 3-year
average of the annual fourth-highest daily maximum 8-hour average
ozone concentrations. The design value for an ozone nonattainment
area is the highest design value of any monitoring site in the area.
\6\ See ``Limited Maintenance Plan Option for Nonclassifiable
Ozone Nonattainment Areas'' from Sally L. Shaver, Office of Air
Quality Planning and Standards (OAQPS), dated November 16, 1994;
``Limited Maintenance Plan Option for Nonclassifiable CO
Nonattainment Areas'' from Joseph Paisie, OAQPS, dated October 6,
1995; and ``Limited Maintenance Plan Option for Moderate
PM10 Nonattainment Areas'' from Lydia Wegman, OAQPS,
dated August 9, 2001. Copies of these guidance memoranda can be
found in the docket for this proposed rulemaking.
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While the LMP guidance memoranda were originally written with
respect to certain NAAQS,\7\ EPA has extended the LMP interpretation of
section 175A to other NAAQS and pollutants not specifically covered by
the previous guidance memos.\8\ In this case, EPA is proposing to
approve New Hampshire's LMP because the State has made a showing,
consistent with EPA's prior LMP guidance, that the area's ozone
concentrations are well below the 1997 ozone NAAQS and have been
historically stable. New Hampshire DES has submitted this LMP for the
Southeast New Hampshire 1997 ozone NAAQS areas to fulfill the second
maintenance plan requirement in the Act. Our evaluation of the
Southeast New Hampshire area 1997 ozone NAAQS LMP is presented below.
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\7\ The prior memoranda addressed: unclassifiable areas under
the 1-hour ozone NAAQS, nonattainment areas for the PM10
(particulate matter with an aerodynamic diameter less than 10
microns) NAAQS, and nonattainment areas for the carbon monoxide
NAAQS.
\8\ See, e.g., 79 FR 41900 (July 18, 2014) (Approval of second
ten-year LMP for Grant County 1971 SO2 maintenance area).
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On March 2, 2012, New Hampshire DES submitted to EPA a request to
redesignate the Portsmouth nonattainment areas to attainment for the
1997 ozone NAAQS. New Hampshire DES also provided EPA with additional
information on September 21, 2012. This submittal included a plan to
provide for maintenance of the 1997 ozone NAAQS in the Portsmouth
nonattainment area through 2012 as a revision to the New Hampshire SIP.
EPA approved the maintenance plan for the Portsmouth nonattainment area
and the State's request to redesignate the Portsmouth nonattainment
area to attainment for the 1997 ozone NAAQS on January 31, 2013 (78 FR
6741).
In conjunction with our approval of the Portsmouth nonattainment
areas 1997 ozone Maintenance Plan covering the first 10-year
maintenance period, we approved various regulatory provisions adopted
by the State providing for the continued implementation of the control
measures relied upon for attainment, and for the authority for state
agencies to implement contingency measures should the area violate the
standard again during this period.
Under CAA section 175A(b), states must submit a revision to the
first maintenance plan eight years after redesignation to provide for
maintenance of the NAAQS for ten additional years following the end of
the first 10-year period. EPA's final implementation rule for the 2008
ozone NAAQS revoked the 1997 ozone NAAQS and stated that one
consequence of revocation was that areas that had been redesignated to
attainment (i.e., maintenance areas) for the 1997 standard no longer
needed to submit second 10-year maintenance plans under CAA section
175A(b).\9\ In South Coast Air Quality Management District v. EPA, the
D.C. Circuit vacated EPA's interpretation that second maintenance plans
were not required for 1997 NAAQS maintenance areas because of the
revocation of that standard. South Coast, 882 F.3d 1138 (D.C. Cir.
2018). Thus, states with 1997 ozone NAAQS maintenance areas still must
comply with the requirement to submit maintenance plans for the second
maintenance period. Accordingly, on July 29, 2021, New Hampshire
submitted second maintenance plans for the Portsmouth area that show
that the area is expected to remain in attainment with the 1997 ozone
NAAQS through the last year of the second 10-year maintenance period,
i.e., through the end of the full 20-year maintenance period.
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\9\ See 80 FR 12315 (March 6, 2015).
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III. New Hampshire's SIP Submittal
On July 29, 2021, New Hampshire DES submitted the Portsmouth area
LMP to the EPA as a revision to the New Hampshire SIP. New Hampshire
DES
[[Page 11376]]
also provided additional information to EPA on December 23, 2021. The
submittal includes the LMP and attachments. The plan and attachments
include air quality data, emission inventory information, air quality
monitoring information, and documentation of notice, hearing, and
public participation.
IV. EPA's Evaluation of New Hampshire's SIP Submittal
A. Procedural Requirements
CAA section 110(a)(2) and 110(l) require revisions to a SIP to be
adopted by a state after reasonable notice and public hearing. EPA has
promulgated specific procedural requirements for SIP revisions in 40
CFR part 51, subpart F. These requirements include publication of a
notice by prominent advertisement in the relevant geographic area of
the proposed SIP revisions, at least a 30-day public comment period,
and an opportunity for a public hearing.
New Hampshire DES published a notice of a 30-day comment period and
notice for a public hearing for the LMP for the Portsmouth maintenance
areas on the State's website. New Hampshire DES received no public
comments, either written or oral. New Hampshire DES then submitted the
Portsmouth area 1997 Ozone NAAQS LMP to EPA as a revision to the New
Hampshire SIP. The process followed by New Hampshire DES in adopting
the Portsmouth area 1997 Ozone NAAQS LMP complies with the procedural
requirements for SIP revisions under CAA section 110 and EPA's
implementing regulations.
B. Substantive Requirements
EPA has reviewed the Portsmouth maintenance area 1997 Ozone NAAQS
LMP, which is designed to maintain the 1997 ozone NAAQS within the
Portsmouth area through the end of the 20-year period beyond
redesignation, as required under CAA section 175A(b). The following is
a summary of EPA's interpretation of the requirements \10\ and EPA's
evaluation of how each requirement is met.
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\10\ See Calcagni memo.
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1. Attainment Emissions Inventory
For maintenance plans, a state should develop a comprehensive,
accurate inventory of actual emissions for an attainment year to
identify the level of emissions which is sufficient to maintain the
NAAQS. A state should develop this inventory consistent with EPA's most
recent guidance on emissions inventory development. For ozone, the
inventory should be based on emissions of VOCs and NOX, as
these pollutants are precursors to ozone formation. The Portsmouth area
LMP includes an ozone attainment inventory for the Portsmouth area that
reflects total emissions for every National Emissions Inventory (NEI)
from 1996-2017. Tables 1 and 2 below contain the NEI data submitted by
the State. The NEI is updated every three years. Additionally, though
not technically required for a LMP, the tables include modeled
emissions projections for 2023 and 2028. EPA notes that the modeled VOC
emission estimates show a slight increase compared to actual measured
emissions from 2017 NEI data, with a 12% increase from 2017 to 2023 for
area sources and a 7% increase in non-road mobile sources for this same
time. These are modeled projections, not actual emissions, and do not
interfere with the State demonstrating an overall downward trend in
total emissions during the maintenance period which continues in 2028.
Table 1 Nitrogen Oxides (NOX)
[tons per year]
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Category 1996 1999 2002 2005 2008 2011 2014 2017 2023 2028
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Point............................................... 20,690 16,170 9,786 12,068 6,969 5,887 4,343 2,691 3,362 2,975
Area................................................ 13,506 5,724 11,259 11,259 6,874 5,758 11,894 10,544 4,244 3,900
Non-Road Mobile..................................... 10,265 8,547 10,015 9,246 7,116 6,532 5,565 4,262 4,808 4,564
On-Road Mobile...................................... 45,984 41,873 38,799 29,750 29,308 17,243 16,292 11,036 6,355 4,539
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Total........................................... 90,444 72,314 69,859 62,323 50,267 35,421 38,093 28,533 18,769 15,978
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Table 2 Volatile Organic Compounds (VOC)
[tons per year]
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Category 1996 1999 2002 2005 2008 2011 2014 2017 2023 2028
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Point............................................... 5,421 2,991 1,599 1,104 783 652 441 757 637 625
Area................................................ 38,766 55,921 61,554 36,105 23,335 20,352 18,560 17,017 19,029 18,955
Non-Road Mobile..................................... 18,177 18,468 21,950 21,255 19,415 15,094 12,598 8,510 9,197 8,812
On-Road Mobile...................................... 26,419 24,511 21,681 18,927 11,811 9,417 9,168 6,804 4,846 3,716
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Total........................................... 88,783 101,891 106,784 77,391 55,344 45,515 40,767 33,088 33,709 32,108
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Based on our review of the methods, models, and assumptions used by
New Hampshire DES to develop the VOC and NOX estimates, we
find that the Portsmouth area 1997 8-Hour Ozone NAAQS LMP includes
comprehensive, reasonably accurate inventories of actual ozone
precursor emissions and conclude that the plan's inventories are
acceptable for the purposes of a subsequent maintenance plan under CAA
section 175A(b).
2. Maintenance Demonstration
The maintenance plan demonstration requirement is considered to be
satisfied in a LMP if the state can provide sufficient weight of
evidence indicating that air quality in the area is well below the
level of the standard, that past air quality trends have been shown to
be stable, and that the probability of the area experiencing a
violation over the second 10-year maintenance period is low.\11\ These
criteria are evaluated below with regard to the Portsmouth area.
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\11\ ``Limited Maintenance Plan Option for Nonclassifiable Ozone
Nonattainment Areas'' from Sally L. Shaver, Office of Air Quality
Planning and Standards (OAQPS), dated November 16, 1994; ``Limited
Maintenance Plan Option for Nonclassifiable CO Nonattainment Areas''
from Joseph Paisie, OAQPS, dated October 6, 1995; and ``Limited
Maintenance Plan Option for Moderate PM10 Nonattainment
Areas'' from Lydia Wegman, OAQPS, dated August 9, 2001.
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a. Evaluation of ozone air quality levels.
[[Page 11377]]
To attain the 1997 ozone NAAQS, the three-year average of the
fourth-highest daily maximum 8-hour average ozone concentrations
(design value) at each monitor within an area must not exceed 0.08 ppm.
Based on the rounding convention described in 40 CFR part 50, Appendix
I, the standard is attained if the design value is 0.084 ppm or below.
Consistent with prior guidance, EPA believes that if the most recent
air quality design value for the area is at a level that is well below
the NAAQS (e.g., below 85% of the standard, or in this case below 0.071
ppm), then EPA considers the state to have met the section 175A
requirement for a demonstration that the area will maintain the NAAQS
for the requisite period.\12\ Such a demonstration assumes continued
applicability of PSD requirements, any control measures already in the
SIP, and that Federal measures will remain in place through the end of
the second 10-year maintenance period, absent a showing consistent with
section 110(l) that such measures are not necessary to assure
maintenance.\13\
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\12\ This LMP guidance can found here: https://www.epa.gov/sites/default/files/2016-06/documents/1995lmp-co.pdf.
\13\ As part of the Ozone Transport Region (OTR), the Portsmouth
area is also subject to additional permitting requirements through
nonattainment new source review (NNSR).
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Table 3 presents the design values for each monitor in the
Portsmouth area over the 2017-2019 period. As shown in Table 3, all
sites have been well below the level of the 1997 ozone NAAQS and the
most current design value is below the level of 85% of the NAAQS,
consistent with prior LMP guidance.
Table 3 Ozone NAAQS Design Values (DV)
[Parts per billion, ppb]
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Hillsborough Merrimack Rockingham
Design value period County County County
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2004-2006....................................................... 75 72 75
2005-2007....................................................... 76 72 77
2006-2008....................................................... 73 70 76
2007-2009....................................................... 71 68 74
2008-2010....................................................... 68 66 69
2009-2011....................................................... 68 65 66
2010-2021....................................................... 68 65 66
2011-2013....................................................... 67 64 67
2012-2014....................................................... 68 63 68
2013-2015....................................................... 66 62 66
2014-2016....................................................... 66 61 66
2015-2017....................................................... 65 63 65
2016-2018....................................................... 65 62 65
2017-2019....................................................... 62 60 62
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Therefore, the Portsmouth area demonstration that the areas will
maintain the NAAQS based on the long record of monitored ozone
concentrations that attain the NAAQS, together with the continuation of
existing VOC and NOX emissions control programs, adequately
provide for the maintenance of the 1997 ozone NAAQS in the Portsmouth
maintenance areas through the second 10-year maintenance period (and
beyond).
b. Stability of ozone levels.
As discussed above, the Portsmouth area has maintained air quality
well below the 1997 ozone NAAQS over the past ten years. Additionally,
the design value data shown within Table 2 illustrates that ozone
levels have been relatively stable over this timeframe, with a modest
downward trend. This downward trend in ozone levels, coupled with the
relatively small year-over-year variation in ozone design values, makes
it reasonable to conclude that the Portsmouth area will not exceed the
1997 ozone NAAQS during the second 10-year maintenance period.
After New Hampshire completed the LMP for the Portsmouth area, EPA
released the final 2018-2020 ozone design values. These values show a
continued downward trend in ozone levels, with a 2018-2020 design value
for the Portsmouth area of 0.063 ppm.\14\
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\14\ For EPA's full design value report please see https://www.epa.gov/air-trends/air-quality-design-values.
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3. Monitoring Network and Verification of Continued Attainment
EPA periodically reviews the ozone monitoring network that New
Hampshire DES operates and maintains, in accordance with 40 CFR part
58. This network is consistent with the ambient air monitoring network
assessment and plan developed by New Hampshire DES that is submitted
annually to EPA and that follows a public notification and review
process. EPA has reviewed and approved the 2020 Ambient Air Monitoring
Network Assessment and Plan.
To verify the attainment status of the area over the maintenance
period, the maintenance plan should contain provisions for continued
operation of an appropriate, EPA-approved monitoring network in
accordance with 40 CFR part 58. As noted above, New Hampshire DES's
monitoring network in the Portsmouth area has been approved by EPA in
accordance with 40 CFR part 58, and the area has committed to continue
to maintain a network in accordance with EPA requirements. For further
details on monitoring, the reader is referred to the ``2020/2021 New
Hampshire DES's Annual Network Plan'' found at https://www.des.nh.gov/sites/g/files/ehbemt341/files/documents/r-ard-20-03.pdf, as well as
EPA's approval letter for the 2020/2021 Annual Network Plan, which can
be found in the docket for today's action. We believe New Hampshire's
monitoring network is adequate to verify continued attainment of the
1997 ozone NAAQS in the Portsmouth area.
4. Contingency Plan
Section 175A(d) of the Act requires that a maintenance plan include
contingency provisions. The purpose of such contingency provisions is
to prevent future violations of the NAAQS or promptly remedy any NAAQS
violations that might occur during the maintenance period. These
contingency measures do not have to be fully adopted regulations at the
time of redesignation. However, the
[[Page 11378]]
contingency plan is an enforceable part of the SIP and should ensure
that the contingency measures are adopted expeditiously once they are
triggered by a future violation of the NAAQS or some other trigger. The
contingency plan should identify the measures to be expeditiously
adopted and provide a schedule and procedure for adoption and
implementation of the measures. The state should also identify specific
triggers which will be used to determine when the contingency measures
need to be implemented. While a violation of the NAAQS is an acceptable
trigger, states may wish to choose a violation action level below the
NAAQS as a trigger, such as an exceedance of the NAAQS. By taking
action promptly after an exceedance occurs, a state may be able to
prevent a violation of the NAAQS. In the unlikely event of a violation,
New Hampshire would be required to adopt and enforce new measures to
remedy the violation. Possible contingency measures identified by New
Hampshire include the following:
NOX controls for industrial, commercial, and
institutional (ICI) boilers.
VOC controls for emulsified and cutback asphalt paving.
VOC controls for consumer products.
EPA proposes to find that New Hampshire's contingency measures, as
well as the commitment to continue implementing any SIP requirements,
satisfy the pertinent requirements of CAA section 175A.
V. Transportation Conformity
Transportation conformity is required by section 176(c) of the CAA.
Conformity to a SIP means that transportation activities will not
produce new air quality violations, worsen existing violations, or
delay timely attainment of the NAAQS (CAA 176(c)(1)(B)). EPA's
conformity rule at 40 CFR part 93 requires that transportation plans,
programs and projects conform to SIPs and establish the criteria and
procedures for determining whether or not they conform. The conformity
rule generally requires a demonstration that emissions from the
Regional Transportation Plan (RTP) and the Transportation Improvement
Program (TIP) are consistent with the motor vehicle emissions budget
(MVEB) contained in the control strategy SIP revision or maintenance
plan (40 CFR 93.101, 93.118, and 93.124). A MVEB is defined as ``that
portion of the total allowable emissions defined in the submitted or
approved control strategy implementation plan revision or maintenance
plan for a certain date for the purpose of meeting reasonable further
progress milestones or demonstrating attainment or maintenance of the
NAAQS, for any criteria pollutant or its precursors, allocated to
highway and transit vehicle use and emissions (40 CFR 93.101).
Under the conformity rule, LMP areas may demonstrate conformity
without a regional emission analysis (40 CFR 93.109(e)).
All actions that would require transportation conformity
determinations for the Portsmouth ozone maintenance areas under our
transportation conformity rule provisions are considered to have
already satisfied the regional emissions analysis and ``budget test''
requirements in 40 CFR 93.118 as a result of an adequacy finding for
the LMP or approval of the LMP. (See 69 FR 40004, 40063 (July 1,
2004).)
However, because LMP areas are still maintenance areas, certain
aspects of transportation conformity determinations still will be
required for transportation plans, programs and projects. Specifically,
for such determinations, RTPs, TIPs and transportation projects still
will have to demonstrate that they are fiscally constrained (40 CFR
93.108), meet the criteria for consultation (40 CFR 93.105 and 40 CFR
93.112) and Transportation Control Measure (TCM) implementation in the
conformity rule provisions (40 CFR 93.113). Additionally, conformity
determinations for RTPs and TIPs must be determined no less frequently
than every four years, and conformity of plan and TIP amendments and
transportation projects is demonstrated in accordance with the timing
requirements specified in 40 CFR 93.104. In addition, in order for
projects to be approved, they must come from a currently conforming RTP
and TIP (40 CFR 93.114 and 93.115). EPA meets monthly with the New
Hampshire Department of Transportation, New Hampshire DES, the Federal
Highway Administration (FHWA), the Federal Transit Authority (FTA), and
other partners to ensure the conformity guidelines in the New Hampshire
SIP are followed (see 78 FR 71504 for EPA's most recent approval of New
Hampshire's ``Conformity'' regulation).
VI. Proposed Action and Public Comment
Under sections 110(k) and 175A of the CAA and for the reasons set
forth above, EPA is proposing to approve the second 10-year LMP for the
Portsmouth maintenance areas for the 1997 Ozone NAAQS, submitted by New
Hampshire DES on February 18, 2020, as a revision to the New Hampshire
SIP. We are proposing to approve the Portsmouth area LMP because we
find that it includes an acceptable update of the various elements of
the 1997 ozone NAAQS Maintenance Plan approved by EPA for the first 10-
year period (including emissions inventory, assurance of adequate
monitoring and verification of continued attainment, and contingency
provisions), and essentially carries forward all of the control
measures and contingency provisions relied upon in the earlier plan.
We also find that ozone design value for the Portsmouth area is
sufficiently below the 1997 ozone standard to allow the State to submit
a LMP and that the Portsmouth area 1997 Ozone NAAQS LMP adequately
demonstrates maintenance of the 1997 8-hour ozone NAAQS through
documentation of monitoring data showing maximum 1997 8-hour ozone
levels well below the NAAQS and continuation of existing control
measures. We believe the Portsmouth area 1997 Ozone LMP to be
sufficient to provide for maintenance of the 1997 ozone NAAQS in the
Portsmouth area over the second 10-year maintenance period (though
2026) and to thereby satisfy the requirements for such a plan under CAA
section 175A(b).
EPA is proposing to approve the Portsmouth Area's Second 10-Year
Limited Maintenance Plan for 1997 Ozone NAAQS into the New Hampshire
SIP. EPA is soliciting public comments on the issues discussed in this
notice or on other relevant matters. These comments will be considered
before taking final action. Interested parties may participate in the
Federal rulemaking procedure by submitting written comments to this
proposed rule by following the instructions listed in the ADDRESSES
section of this Federal Register.
VII. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this proposed action merely approves state law as meeting
Federal requirements and does not impose additional requirements beyond
those imposed by state law. For that reason, this proposed action:
[[Page 11379]]
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: February 18, 2022.
David Cash,
Regional Administrator, EPA Region 1.
[FR Doc. 2022-04118 Filed 2-28-22; 8:45 am]
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